The EB-5 visa for USA immigration is designed specifically for those wishing to immigrate to the USA by investing in the creation of a new commercial enterprise.
This relatively new method to apply for a Permanent Resident Card for lawful permanent residence in the USA, the much coveted USA Green Card, is granted far more infrequently than the other employment based US Green Card visa services and requires a substantial investment in order to qualify. The requirements of this American visa category are also fluid and although some criteria are clearly defined, whether an application fulfils other requirements is generally decided by the United States Citizenship and Immigration Services (USCIS)
Understanding the range of USA immigration services can be complex and time consuming; for those migrating to the USA on a permanent residency basis, several routes to applying for USA Green Cards may be considered. In addition, for those entering the USA for a short term visit or to live and work in the USA for a defined period of time, the most appropriate route must be determined from the wide variety of non-immigration visas for the USA.
When applying for an American Green Card, whether through an employment based route or through familial ties, the key benefit of permanent resident status is that an applicant may commence living and working in the USA without any time restrictions. Unlike short term American visas such as the B1 business visitor visa or the B2 tourist visa which are awarded for a strictly limited period of time, USA permanent residents enjoy many, though not all the benefits of living in America enjoyed by USA citizens. American business visas both temporary and permanent place emphasis upon an offer of employment being in place from a US company before an application can be made. Only in the case of the EB-1 visa for priority workers and in some circumstances the EB-2 visa where much like the Highly Skilled Migrant Programme or HSMP in the UK, can a candidate immigrate to the USA without a job offer being made. The EB-5 category is an exception however, based as it is upon investment. EB-5 visas do have criteria which must be met, and it is important to note that of the submissions lodged, a small percentage are successful, however a job offer as such is not required.
Applying for an EB-5 visa is based upon an applicant’s intention to begin a commercial enterprise which will be of benefit to the United States economy and will create employment opportunities for at least 10 people in the permanent resident or US citizen categories. In America, visas of this kind are based around investment, and the minimum amount required is USD $1,000,000, although in cases where an investment is in a “targeted employment area”, this figure may be reduced by half.
Creating Employment Opportunities
In America, immigration through applications for EB-5 US visas requires that an investment must create at least 10 positions of employment for those lawfully living in the USA on a permanent basis. Family members of the investor cannot be included in this stipulation and non-immigrants are also excluded. Employees must not be independent contractors and must provide services or labour for the enterprise, receiving wages directly from the entity. Positions created must be full time and must constitute a minimum of 35 hours per week and places on the EB-5 scheme will be weighted in favour of enterprises creating jobs in “targeted employment areas”, defined as areas in which unemployment is at least 150% of the national average.
The legislation relating to EB-5 USA visas has a tendency to be fluid and no set requirements are in place to address at what point in an application jobs should be created. However, the 10 positions required do not have to be created immediately and may be projected employment opportunities, so long as they are realistically incorporated into a comprehensive business plan and will be filled accordingly.
Beyond the prerequisites of job creation and the minimum investment amount, much of this immigration visa route is open to the assessment of USCIS. Commercial enterprises must be both “new” and “commercial”, rather than a non-profit organization. However, in practice, the term “new” can be interpreted broadly.
An existing business which is purchased by the investor then reorganised or restructured can conceivably qualify as a new enterprise, if the reorganisation is more significant than a nominal change of legal form and creates the required 10 new positions. In addition, immigrating to America to expand an existing business may also qualify as “new” if the enterprise is increased by at least 40% in net worth or the number of employees.
Migrating to the USA through this investment based route to a United States Green Card is intended as a permanent immigration service leading to settled status in the USA. Accordingly, as with all routes to Permanent Resident Cards, provision is made for spouse immigration and dependent immigration and successful applicants may include their spouse, partner and dependent children on their application to migrate to America.