The EB-5 visa in an immigrant visa for foreign nationals who invest a substantial amount of money in a new commercial enterprise in the United States and create new jobs as a result. There are 800 Regional Centers in the U.S. that facilitate this process—two of which are located in New Orleans: New Orleans & Gulf Coast Regional Center, LLC and WAHA EB-5 Regional Center of New Orleans, LLC.
At the Louisiana law firm of Stephenson, Chávarri & Dawson, we help foreign national investors to obtain EB-5 visas and permanent resident status by participating in job creating activities in the New Orleans area through the investment of capital in a new commercial enterprise.
In 1990, to attract immigrant investors and generate economic growth within the United States, Congress created an opportunity for foreign nationals under Section 203(b)(5) of the Immigration and Nationality Act (INA) to obtain permanent residency by investing in a new U.S. commercial enterprise and creating or preserving ten full-time qualified jobs in the U.S.
The name “EB-5” reflects this visa’s position as fifth preference among employment-based immigrant visas in the U.S. The program designates 10,000 immigrant visas each year for individuals who make a qualifying investment in a new commercial enterprise in the United States. Of these EB-5 visas, 3,000 are reserved for those who invest in a designated Regional Center.
Foreign investors must invest specifically in a new commercial enterprise, defined as a business established after November 29, 1990 or on or before that date, if the business was purchased and reorganized in a way that created a new commercial enterprise or the business was expanded by at least 40% in work force or net worth.
The business may be a sole proprietorship, an LLC, an S-Corporation, a C-Corporation, a partnership, a holding company, or any other publicly or privately-owned lawful business.
Capital contributions may include cash, cash equivalents, tangible property like inventory or equipment, or assets owned by the immigrant investor to secure debt of the commercial enterprise. You must be able to prove that the funds you are investing were lawfully gained. The investment funds may be obtained by the immigrant investor from a gift, loan, inheritance, business or investment income, or salary.
This also includes loan proceeds, even if the loan itself was not secured by the immigrant investor’s own assets. In November 2018, the U.S. District Court for the District of Columbia certified a class action of immigrant investors who had a Form I-526 Immigrant Petition by Alien Entrepreneur denied solely because their investment in the United States included loan proceeds not secured by their own assets.
Generally, to obtain an EB-5 visa, an immigrant must invest at least $1 million in a new commercial enterprise; however, if the investment is made within a high unemployment area or a rural area, the immigrant need only invest a minimum of $500,000 to qualify.
An area is considered to have a high unemployment rate if, at the time of investment, it is experiencing an unemployment rate of at least 150 percent the national average. A rural area is defined as any area that is not located within a city or town with a population of 20,000 or more, or a metropolitan statistical area.
A capital investment is not alone enough to qualify an individual for an EB-5 visa—they must also create 10 full-time qualified jobs, if the business is a new enterprise, or preserve 10 jobs, if the enterprise is considered a “troubled business” and has experienced at least a 20 percent net loss in the 12 or 24-month period preceding the immigrant’s application priority date.
The jobs must be full-time, permanent positions that are created as a result of the investment and expected to last for at least two years. “Full time” is defined as a minimum of 35 hours per week and employees may be anyone who is authorized to work in the United States. Seasonal, temporary, or intermittent jobs do not count toward this quota.
The jobs may be directly or indirectly created—that is, the enterprise itself may employ the individuals or the enterprise may indirectly create “collateral” jobs outside the entity, as a result of the enterprise’s economic activity.
An EB-5 Regional Center is a public or private entity in the United States, regulated by U.S. Citizenship and Immigration Services (USCIS), that exists to manage immigrant investments for job creation and economic growth.
By investing in a Regional Center, you can qualify for an EB-5 visa through indirect job creation. Regional Centers invest into the local area, creating collateral jobs from your investment. While profit from investment into an EB-5 Regional Center is reduced by a percentage of your return that is paid to the Regional Center, these centers offer increased stability to your investment and reduce the need for your personal involvement in job creating activities.
Yes. You may invest in a new commercial enterprise outside of an EB-5 Regional Center, however, it will be more difficult to navigate the process and ensure proper compliance with USCIS requirements. If you choose to invest directly in a business or job-creating project, you will typically need to demonstrate that you created 10 new jobs directly.
Furthermore, like any new business venture, there is risk in investing into a new commercial enterprise, particularly when your immigrant visa is contingent on your investment and creation of 10 new full-time, permanent jobs.
On the other hand, direct investment into projects outside of a Regional Center may present a better rate of return on investment, generating higher profits. Ultimately, you should work closely with your immigration attorney and financial consultant to choose the best investment option. The majority of immigrant investors will find more security by investing into an EB-5 Regional Center.
Once your I-526 Petition is approved, the next step is to apply for conditional permanent residency. If you are already lawfully in the United States, you can do this by applying for Adjustment of Status with USCIS by filing a Form I-485 or if you are outside the U.S., you may apply for a permanent immigrant visa or “green card” at a U.S. consulate abroad.
The benefits of receiving permanent residency in the United States are numerous. As a permanent resident, you may travel to the U.S. without an additional travel, work, or study visa and stay for as long as you wish. You may live in the U.S. permanently, so long as you maintain your status as a permanent resident. You will be eligible to apply for U.S. citizenship after 5 years of residing in the U.S. as a permanent resident and you may be eligible to apply to bring other family members to the U.S., though each family member must apply separately.
Our firm’s international scope and multilingual capabilities makes Stephenson, Chávarri & Dawson a logical choice to represent foreign investors who would benefit from experienced legal guidance, dedicated advocacy and wise counsel from an attorney who speaks Spanish or French fluently. We routinely represent clients from Central and South America, Spain and other European countries, Africa and Asia.
The firm’s extensive experience in U.S. and international business and commercial law enables us to offer an extra level of strategic guidance and support for foreign-national clients engaged in business and investment activities in New Orleans or any of the other USCIS regional centers.
Call Stephenson, Chávarri & Dawson at 504-523-6496 or contact our firm by e-mail to schedule an initial consultation with an experienced New Orleans immigration lawyer. We can assist you in preparing and filing the necessary forms and will manage your application throughout the process.