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  • Alex T. Barak, P.A.

Investment-Based Immigration To The USA

IMMIGRANT INVESTOR PROGRAM

Employment-Based, “EB-5” - Green Card Category


Investments that are specifically targeted for “Employment Creation.”

E-2 Investment Visa

A. Private individual investment of USD $1.8 million


B. Private individual investment of USD $ $900,000.00 in a targeted employment area that, at the time of investment, is a rural area or an area that has experienced unemployment of at least 150 percent of the national average rate. A letter from the State Governor or Department of Labor or Department unemployment is required to confirm the unemployment rate of at least 150% of the national average.


C. Investors in Regional Centers

The U.S. Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. In 1992, Congress created the Immigrant Investor Program, also known as the Regional Center Program. This sets aside EB-5 immigrant visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS (United States Citizenship and Immigration Services) based on proposals for promoting economic growth. There are hundreds of approved regional centers all over the USA.


There is great interest in Regional Centers. If you do not actively want to manage a business, you should consider the $900,000.00 Regional Center option, as you will not be required to actively manage a business, so it is often cheaper to utilize this category rather than start and maintain your own business. You can live anywhere in the country. You will be a passive investor, usually with no work or management duties to perform. Some analysts consider this version of EB-5 as buying a green card.


The immigrant investor must establish that he or she is the legal owner of the capital invested. An EB-5 investor must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least ten qualified employees.

Anyone seeking a green card in this category must prove that his/her funds were earned legally.

A successful EB-5 case will produce a two-year conditional green card, also known as a Conditional Lawful Permanent Residency “CLPR,” which must be later converted into the permanent green card by filing another set of Immigration petitions within 90 days before the expiration of the initial two years. The investor, spouse, and children under 21 receive the benefits of the EB-5 program.


CONVERSION TO PERMANENT, UNLIMITED GREEN CARD, LAWFUL PERMANENT RESIDENCY, LPR

To convert the first two-year green card into a permanent status, a new petition, Petition For Removal of Conditions for EB-5 Investor, needs to be filed within the 90 days before the expiration of the first two-year green card, to prove the business is still in operation, thus converting the temporary green card into a permanent one. The “conditions” must be removed so that the investor and family may reside in the U.S. indefinitely. Failure to remove the conditions results in the termination of CLPR status.


In this second step, to obtain an unlimited green card, the investor must demonstrate full investment in the enterprise and compliance with the requirement regarding jobs. The investor must also demonstrate maintenance of the investment continuously since becoming a CLPR. The General Partner of the Project will provide documentation upon request by the investor as reasonably necessary and available in support of the investor’s application for Removal of Conditions.


During the pendency of the second step, aliens admitted in Conditional Lawful Permanent Resident (CLPR) Status remain in valid status even if the petition is not decided before the expiry of the two-year period of admission. CLPR is USUALLY extended for six months upon filing this Petition and extensions are granted while the case remains undecided until the petition to remove conditions is legally decided.


RESIDENCY REQUIREMENTS

Permanent residency or green card status, even “conditional” green card status, requires one to live in the USA 51% of all days in each 365 day period from the moment the status is approved.


There is a myth throughout the world that a green card holder just needs to visit the USA once or twice a year. That is absolutely false.


You may also lose your permanent resident status by intentionally abandoning it. You may be found to have abandoned your status if you:

• Move to another country, intending to live there permanently.

• Remain outside of the United States for an extended period of time, unless you intended this to be a temporary absence, as shown by:

• Fail to file U.S. income tax returns while living outside of the United States for any period.

• Declare yourself a “nonimmigrant” on your U.S. tax returns.


For those who need to be out of the country for six months or more, obtaining a Re-Entry permit from USCIS may assist you in preserving your green card status.



U.S. IMMIGRATION GOVERNMENT FEES

The Immigration filing fees for EB-5, Form I-526 Immigrant Petition by Alien Entrepreneur, which is the first of two steps, are now $3,675.00. After the investor’s petition is approved, i.e., the individual’s money is deemed from legal sources, AND the project is approved as being in full compliance with U.S. Immigration laws, the next step is needed.

For the 2nd step, the investor, his/her spouse, and children under 21, if in the U.S. in a legal capacity, can apply for adjustment of status while here to register for their Conditional Lawful Permanent Residency“CLPR.”


This registration includes a work permit and travel permit while the case is pending, which are issued within 4-10 months of filing this step.

Or if overseas, the investor, spouse and children under 21 can apply for the Immigrant Visa/Conditional Lawful Permanent Residency through the Department of State, culminating in an interview a the U.S. Embassy. This will take an estimated

10-18 months.


Currently, the U.S. Immigration processing time posted for the first step of filing is published online as taking 35-78 months. The second step with U.S. Immigration processing takes 9-55 months. These waiting times are very disturbing, and that is why other categories/options must be considered. Most Regional Centers have administrative fees in the $35,000.00 to $60,000.00 range, in addition to the USD $900,000.00 investment commitment.

One should always seek legal representation with a very experienced Immigration lawyer for this category. The legal fees charged, not covered above, will protect your investment and legal rights.


GREAT ALTERNATIVE TO EB-5, THE EB-1

Multinational Executive or Manager, GREEN CARD CATEGORY

Employment-Based Immigration: First Preference EB-1. You may be eligible for an employment-based, first-preference visa if you or with one transaction you become a multinational executive or manager.


A person who is a manager or an executive of a multinational company can file directly for a green card if the U.S. branch has been in business for at least a year and the number of full-time salaried employees exceeds eight at both the parent company and the newly purchased subsidiary. There is a popular procedure whereby a foreign company opens a new subsidiary in the U.S. and sends a manager to manage the new subsidiary. This is the L-1 visa process. Then, from 1-7 years later, the U.S. company files for a green card for this manager, as long as the foreign parent and U.S. subsidiary relationship has continued. When to file between one year and the seventh year depends on the number of employees and other financial factors. An experienced attorney can help to recommend when to file. A shortcut to this green card category called multinational executive or manager, EB-1, is for a foreign company to purchase ownership of an American company that has at least eight or more full-time employees who receive payroll; then the newly acquired U.S. subsidiary can apply directly for a green card for the foreign manager or executive and can skip the L-1 temporary working visa. To find a company for sale requires an experienced business broker working in conjunction with your Immigration attorney. At the present time, it will take a purchase price of least $500,000.00 and higher to purchase an existing, successful company meeting the criteria for this category, a business with solid financial records. But it will be real, under your control and it gives you a green card, full and unrestricted. This towers over the much slower EB-5 process. Following the investor’s purchase of an American company, which is a legal transaction through a Purchase And Sale Contract, a Petition I-140, an Immigrant Petition by the U.S. company for the foreign investor, can commence. There are many twists to the L-1 visa and the EB-1 Multinational Manager green card category as to which option is best for you, or even the E-2 visa described below.



E-2 INVESTOR VISA

The E-2 visa allows a person who opens up a new business in the U.S. and places $100,000.00 or more at risk, or buys a business with $100,00.00 or more, to have the opportunity to have an investor visa, which can be valid and renewed indefinitely, as long as the business remains operational. The spouse and children under 21 also come along. The spouse can also receive a work permit. This visa has no direct path to a green card, but proper structuring and maintaining a multinational corporate structure can lead to a green card under the multinational executive/manager category. Not every country is on the E-2 visa list.

The E-2 visa is one of only two work visas where one can apply directly with a U.S. Embassy and bypass filing with the U.S. Immigration Service, known as USCIS.



E-2 visa requirements:

• The investor is a national of a country with whom the U.S. has the requisite treaty or agreement. See this website to determine if your country is on the list:

https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html

• The applicant will direct or develop the enterprise. The applicant must demonstrate that he controls the enterprise by showing ownership of over 50% of the enterprise, or 50%with operational control through a managerial agreement;

• The investor has invested in or is actively in the process of investing in the enterprise;

• The investment is substantial, i.e. sufficient to ensure the investor’s financial commitment to the successful operation of the enterprise and big enough to support the likelihood that the investor will successfully direct and develop the enterprise;

• The investment enterprise is not a marginal enterprise;

• If the applicant is not the principal investor, he or she must be employed in an executive or supervisory capacity or possess skills that are highly specialized and essential to the operations of the commercial enterprise. Ordinary skilled or unskilled workers do not qualify.

• That the applicant intends to depart the U.S. upon the expiration of E-2 status.

• The investor, either a real or corporate person, must be a national of a treaty country;

• The applicant has invested or is in the process of investing.

• The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with assets of the investment enterprise are not allowed; and

• The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment;

• The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise;

• The applicant is in a position to “develop and direct” the enterprise.

• Client must have a comprehensive business plan.


In addition to the above, the applicant must provide a document-linked history of the funds to provide clear and unquestionable proof of the money’s legal sources.


If the investor is legally in the U.S. with an unexpired temporary visa, we can file for a change of status through the mail with Immigration. The client who is here on a non-immigrant visa whose stay has not expired has the option from Immigration for speedier processing, which involves a $2500.00 additional premium processing fee, which, according to Immigration, guarantees processing of approval or a request for more documentation within 15 days. A spouse and minor children under 21 can receive derivative E-2 status. A derivative spouse on E-2 can also obtain a work permit.

OR,

The client will need to go to the U.S. Embassy in their home country for an appointment specifically for an E-2 visa interview. Embassies vary in their procedures and waiting times.


Client and family members will have to complete online Department of State forms.


The client will cooperate with an attorney and gather and assemble all documents needed for this category. The attorney will prepare and send in advance a comprehensive package which will be thoroughly reviewed and inspected by a Non-Immigrant Visa/E-2 specialist. The attorney will communicate with the U.S. Embassy/Consulate, as necessary, to discuss and conclude the client’s intended successful process.


The E-2 visa can be issued initially for five years for some countries’ citizens, two or three years for other countries, and can be renewed indefinitely as long as the business continues to be actively operated in full compliance with American laws.


The E-2 regulations require the applicant to have an intention to return to his home country. This intent must be placed into writing. The applicant can never state he/she intends to live in the USA permanently.


Whether the E-2 visa is a good fit for you will be determined by Alex Barak after learning all about your facts, history, needs, and business experience.

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Alex Barak

www.baraklaw.com

Florida licensed lawyer since 1981

Law Offices of Alex T. Barak, P.A.