Investing in a commercial enterprise is one means of gaining entry and permanent residence to the USA for British expatriates. The EB-5 visa program has long been used by foreign investors wishing to move to the USA.
If you have been considering taking this route into the country, you need to be aware of changes to the EB-5 visa program, effective from 21 November 2019.
The EB-5 visa has remained largely unchanged for a long time, but with a tightening of the borders and a restriction on visa numbers for expatriates entering the USA, the criteria has been revised and new guidance published. The most significant changes are in the minimum investment levels.
The EB-5 is also known as the ‘employment-based fifth preference’ immigrant visa and is one of the many available employment-based visas for entry to the USA. It has been available since 1990, when it was introduced as a means to stimulate the US economy. It was designed to help encourage foreign investors to put money into USA-based businesses, as well as create new jobs.
Under EB-5, persons wishing to move to the USA can apply for ‘lawful permanent residence’ in the country as long as they make a significant investment in a commercial enterprise in the country. A commercial enterprise can be a sole proprietorship; a general or limited partnership; a holding company; a joint venture; a corporation; a business trust; or other for-profit entity.
The enterprise must have been established after 29 November 1990, or established before this date if it has been significantly restructured so that the result is a new commercial enterprise, or expanded through investment with at least a 40% increase in the net worth or number of employees.
There are also a number of designated ‘Regional Centers’, which are public or private units to promote economic growth, and are specifically designated for those taking part in the Immigrant Investor Program. There are more than 800 approved Regional Centers (at the time of writing).
The investment capital should, in most cases, create at least 10 full-time jobs for qualified workers. In some cases, the investment can preserve 10 existing full-time job roles. The employees must be US citizens, permanent residents or immigrants authorised to work in the USA, and work for more than 35 hours per week. In a commercial enterprise that is not part of a Regional Center, these job roles must be directly created, but for enterprises that fall within a Regional Center the employment positions can also be indirect – i.e. they are held outside of the enterprise itself, but they are created as a result of the investment.
The minimum investment level depends on whether or not the commercial enterprise is in a Targeted Employment Area (TEA). By investing in a TEA, areas with high unemployment directly benefit, and so the minimum investment amount is lower to encourage outside investors to concentrate on the areas that need it the most.
There are some significant changes to the EB-5 visa program as of 21 November 2019. The most important for potential investors is an increase in the minimum investment levels to account for inflation. The standard minimum investment amount rises from $1 million to $1.8 million. The TEA minimum investment rises from $500,000 to $900,000. Increases are tied to inflation and will rise every five years.
Another major change is in the determination and designation of TEAs, which did fall under state and local governments. The review of TEAs is now directly under the US Citizenship and Immigration Services (USCIS). There are also changes in what regions can qualify as a TEA – both rural areas (with small populations) and larger areas, including towns and cities, will be considered if they have an average unemployment rate of at least 150% of the national average.
There are other changes to the visa program that updates procedures, rules and technical revisions, which are detailed on the USCIS website. The aim of the changes is to modernise the EB-5 program and bring it in line with the country’s current requirements for investment.
For those British expatriates who wish to use the EB-5 route into the USA and invest in a suitable commercial enterprise, the first step is to fill in a I-526 Immigrant Petition.
There is a fee attached to filing this application, which is currently set at $3,675. The petition requires you to supply evidence of your investment – which you may have already invested in or be actively in the process of investing in – into a suitable and eligible commercial enterprise. You will also need to show where the investment funds are coming from and their legitimacy. There is also a cap on the number of EB-5 investor visas that can be accepted per year, which is around 10,000 in total, with 3,000 earmarked for investment through Regional Centers.
Once filed and approved, you then move on to file your application for either initial entry into the USA or to adjust your current status to a conditional permanent resident. On approval of a I-485 application for conditional permanent residence, you and your family will be able to stay for an initial two-year period. After this time, you can then use the I-829 petition to remove the conditional element and apply for unconditional permanent residence for yourself and your family members.
While there is a lot of red tape to wade through, there is a good resource on the USCIS website, which lists filing tips, advice and documentation, as well as the full policy manual to aid you through the process. There are also immigration specialist agencies that can provide insight into the investor visa process and advise on changes to policy as and when they occur.