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Immigrant visas for employment-creation investors

By Boyd F. Campbell
Attorney and Civil Law Notary

    Evaluating and preparing immigrant visa cases for employment-creation investors under the EB-5 immigrant visa program represents some of the most difficult and complex work an immigration lawyer can undertake.  The process is anything but simple, made more difficult by U.S. Citizenship and Immigration Services (USCIS) adjudications and Board of Immigration Appeals decisions.  A brief overview of the EB-5 program follows:

    Under section 203(b)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(5), 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise.  Of the 10,000 investor visas (i.e., EB-5 visas) available annually, 5,000 are set aside for those who apply under a pilot program involving an USCIS-designated Regional Center.  A Regional Center is an entity, organization or agency that has been approved as such by USCIS, focuses on a specific geographic area within the United States; and seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.
    Alien investors must demonstrate that a "qualified investment" (see below) is being made in a new commercial enterprise located within an approved Regional Center, and show, using reasonable methodologies, that 10 or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.

Eligibility

    Permanent resident status based on EB-5 eligibility is available to investors, either alone or coming with their spouse and unmarried children. Eligible aliens are those who have invested -- or are actively in the process of investing -- the required amount of capital into a new commercial enterprise that they have established. They must further demonstrate that this investment will benefit the United States economy and create the requisite number of full-time jobs for qualified persons within the United States.
    In general, "eligible individuals" include those who establish a new commercial enterprise by (1) creating an original business; (2) purchasing an existing business and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results; or (3) expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months; and who have invested -- or who are actively in the process of investing -- in a new commercial enterprise at least $1 million, or at least $500,000 where the investment is being made in a "targeted employment area," which is an area that has experienced unemployment of at least 150 per cent of the national average rate or a rural area as designated by Office of Management and Budget; and
whose engagement in a new commercial enterprise will benefit the United States economy and create full-time employment for not fewer than 10 qualified individuals; or maintain the number of existing employees at no less than the pre-investment level for a period of at least two years, where the capital investment is being made in a "troubled business," which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.

How to apply

    In order to seek status as an immigrant investor, you must file USCIS Form I-526, Immigrant Petition by Alien Entrepreneur. The Form I-526 must be filed with supporting documentation which clearly demonstrates that the individual’s investment meets all requirements, such as establishing a new commercial enterprise, investing the requisite capital amount, proving the investment comes from a lawful source of funds, creating the requisite number of jobs, demonstrating that the investor is actively participating in the business; and, where applicable, reating employment within a targeted employment area.
    The minimum $500,000 investment must be irrevocably committed to an escrow agent bank in the foreign national's own country. Once the Form I-526 is approved, the escrow agent bank releases the funds to the Regional Center and the immigrant investor obtains status as a conditional resident by filing Form I-485, Application to Register Permanent Residence or Adjust Status, if residing within the United States; or, applying for an immigrant visa at a U.S. consulate abroad, if residing outside the United States.  The two USCIS service centers -- Texas and California -- that adjudicate these cases are taking an average of six months to do so, but this process can be expedited in certain circumstances.
    In order to become a lawful permanent resident, eligible investors must file a USCIS Form I-829, Petition by Entrepreneur to Remove Conditions. Form I-829 must be filed within 90 days before the second year of an alien investor’s admission to the United States as a conditional resident.
    The Alabama Center for Foreign Investment, L.L.C., was officially designated by USCIS as Alabama's Regional Center on June 11, 2007, and has identified qualifying Regional Center investment projects under the EB5 immigrant investor visa program.

    Boyd F. Campbell has practiced immigration and nationality law and private international law in Montgomery, Alabama, since 1988.  He is a member of the American Immigration Lawyers Association (AILA), and the Alabama State Bar.  He served as Senior Vice-Chair and Chair of the Immigration Law Committee of the American Bar Association's General Practice, Solo & Small Firm Lawyers Section.  He also served as co-chair for employees of the Immigration Law Committee of the ABA's Labor and Employment Law Section and was a member of the ABA's Coordinating Committee on Immigration Law from 1994 to 1998.  He is a founder and served as Chair of the International Law Section of the Alabama State Bar from 2000-2002.  In August 2001, Mr. Campbell was appointed Alabama's first practicing civil law notary by the Alabama Secretary of State.  In 2006, he accepted the position of General Counsel of the Alabama Center for Foreign Investment, L.L.C., Alabama's federally designated, statewide Regional Center.

Questions or comments about this article may be directed to:
Immigration Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama  36111-0032  USA

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