Updated: November 13, 2018
3. Immigrant Investor (EB-5): The ‘Million Dollar Green Card’
In 1990 the US Congress, in a bid to create jobs and encourage foreign investment, created a new route to lawful permanent residence. The programme has been variously known as ‘alien entrepreneur,’ ‘immigrant investor,’ ‘million-dollar green card,’ or ‘EB-5,’ the latter referring to its designation under immigration law as employment-based visa category, fifth preference. A summary of the EB-5 programme can be found here on the US Citizenship and Immigration Services website.
The Original Programme
The EB-5 programme as originally conceived allowed immigrant investors to receive conditional resident status in the US for a two-year period if they invested $1 million (or $500,000 in certain targeted geographical areas) in a new or failing US business that created at least 10 full-time jobs. The alien was required to be personally involved in the management of the business. Within the 90-day period preceding the second anniversary of the grant of conditional permanent resident status, the alien then filed a second petition to have the condition removed and his lawful permanent resident status made permanent.
The Regional Center Programme
Of the 10,000 EB-5 immigrant visas available every year, 3,000 have been set aside for participants in a programme for immigrant investors who make qualifying investments of at least $500,000 in a business located within a pre-qualified ‘regional center.’ The USCIS regulations allow foreign investors in regional centers to satisfy the requirement of job creation by using ‘reasonable methodologies,’ such as ‘multiplier tables, feasibility studies, analyses of foreign and domestic markets… and other economically or statistically valid forecasting devices’ to prove that their investment will create 10 or more jobs, directly or indirectly. The regional center programme, which was set up on a temporary ‘pilot program’ basis but has been renewed several times, is currently set to expire on September 30, 2017.
Considerations for Potential Investors
Participation in the EB-5 programme, whether in the traditional or pilot variants, should be undertaken only after careful consideration and after receipt of professional advice. The USCIS and the US Securities and Exchange Commission (SEC) have issued a joint Investor Alert on the subject of EB-5 scams, with suggestions of areas a prospective EB-5 applicant should investigate before investing. The prudent investor will investigate all potential avenues for immigration to the United States before deciding on any one course of action, particularly one that requires a substantial investment. This investigation should include querying one’s advisers, business and professional, as to any factors that might potentially colour their advice, such as whether the advisor stands to receive a ‘finder’s fee’ for referring the potential investor to a particular investment scheme. Various US Government enforcement agencies, including the Securities and Exchange Commission, have announced investigations of advisers connected with the EB-5 programme.