EB 5 – USA Green Card

United States Citizenship And Immigration Services (USCIS) administers the Immigrant Investor Program, also known as “EB-5,”.
Created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors.
Under a pilot immigration program first enacted in 1992 and regularly reauthorized since, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.

Investing – Direct vs Indirect Investments

The EB-5 immigrant investor pilot program was introduced in 1990 as a way for immigrants to obtain permanent residency in the United States by investing a required amount of money into a new commercial enterprise to create a minimum of 10 U.S. jobs. When it comes to EB-5, there are two ways for an immigrant to invest his/her money – direct investment and Regional Center investment. The main difference between the two is the way in which jobs can be calculated.

In the direct model, only direct jobs can be calculated. This means that only the jobs associated with workers directly on the company payroll can be counted. Because of this, direct EB-5 investment projects are ideally suited to smaller sized deals that are mostly dependent upon operational jobs. Direct investment projects typically include restaurant, franchise, or individual medical offices where the time frame and cost of construction is relatively small, but the number of employees supports the requirements for the EB-5 program.

The second option is investing into a project through a Regional Center. The key advantage to a Regional Center investment is that direct jobs and both indirect and induced jobs can be counted. As a result, Regional Center projects tend to be much larger deals involving higher capital costs.

By leveraging jobs created as a result of the entire capital stack, many more jobs are considered to have been created, and therefore, a much larger EB-5 investment can be sustained. Another benefit of investment through a Regional Center is having someone in charge of the immigration tracking process

managing filing status and paperwork, coordinating communication with investors and their agents, etc.
and ensuring your project and Regional Center comply with EB-5 requirements. In some cases, the USCIS may even take a first look at the project while the Regional Center application is being approved. Being approved as a Regional Center requires a significant investment in time and money. As with any government program, the process to obtain Regional Center designation is long and complex. Both types of EB-5 investments are accepted by the USCIS. It is up to the investor to conduct his/her due diligence on every project and up to the Regional Center to make sure the money is being invested in the right place.

In our experience, both direct and Regional Center EB-5 opportunities have appeal to investors. Developers interested in EB-5 funding should consider the type of model for the project they wish to do. In some cases, the additional overhead of establishing a Regional Center may be well worth the effort, whereas in other cases the direct investment approach is ideal.

Investing – Eligible Investments

All EB-5 investors must invest in a new commercial enterprise , which is a commercial enterprise:

Established after Nov. 29, 1990, or
Established on or before Nov. 29, 1990, that is:
- Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
- Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs

Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:

A sole proprietorship
Partnership (whether limited or general)
Holding company
Joint venture
Corporation
Business trust or other entity, which may be publicly or privately owned

This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business. Note: This definition does not include noncommercial activity such as owning and operating a personal residence.

Investing – Capital Investment Requirements

Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act.

Note: Investment capital cannot be borrowed.

Required minimum investments are:

General. The minimum qualifying investment in the United States is $1 million.
Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000.

A targeted employment area is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate.

A rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.

Investing – EB-5 Loan Model

EB-5 Loan Model For several years, the EB-5 “loan model”structure has dominated the EB-5 industry. The loan model typically involves a special purpose vehicle (“SPV”) that is formed to accept EB-5 investors. The SPV then makes a loan to the company that creates the jobs. The EB-5 investors in a loan model are invested in the SPV, as opposed to the company that operates the business and creates jobs. This means that the EB-5 investors in loan models are generally dependent upon the repayment of the loan for an exit. Therefore, for EB-5 investors in loan models that are concerned about the risk of loss in their EB-5 investment, it is important to ensure that the loan terms and quality of the borrower are suitable from a risk-tolerance perspective.

It is crucial for investors to understand the terms of the loan that supports their investment. The loan is often summarized by the issuer in an offering memorandum or other disclosure document. If the summary is not satisfactory or too brief, request a copy of the underlying documents. In some cases, the actual loan agreement is not finalized until close to the first draw from the borrower, which may be after marketing for the investment has begun or even after all of the funds have been raised. Investors may wish to reserve the right to view the agreement when it has been finalized and available or obtain assurances that the finalized loan agreement will not deviate from the proposed loan terms. In a transaction with related parties, such as is the case when a regional center has the same owners as the project developer, it may be particularly prudent for an investor to review the terms carefully to ensure that the affiliated nature between the parties does not materially affect the investor’s interest.

EB 5 – USA Green Card

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Investing – Direct vs Indirect Investments

Investing – Eligible Investments

Investing – Capital Investment Requirements

Investing – EB-5 Loan Model

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