What is an EB-5 investor visa?

In this week's Consulta Migratoria® column I answer the question of a reader who wants to know how to obtain an EB-5 investor visa that allows you to live and work legally in the United States.

Each case is different and the answers vary depending on each person's immigration history.

Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before starting any procedure.

This is the column:

I am Mexican and own several businesses in Mexico. I wish to immigrate to the United States along with my husband and two minor children. I have heard about the EB-5 investor visa and want to know what are the requirements for this visa. -Maria E.

Maria, the Immigrant Job Creation Visa, commonly known as the EB-5 investor visa program, allows foreign investors and their immediate families to live permanently in the United States.

The federal government authorizes the issuance of up to 10,000 EB-5 visas per year to foreign entrepreneurs who contribute to U.S. economic growth by investing in U.S. businesses and creating U.S. employment opportunities. The EB-5 visa allows the qualifying investor to enter the U.S. with his or her spouse and unmarried children under the age of 21.

This visa requires an investment of $$1,000,000 which must be used to create a commercial enterprise or to save a business that is facing difficulties. The investment must benefit the country's economy and directly create and maintain 10 full-time jobs.

If the foreign investor decides to invest in a "labor incentive zone" with a high level of unemployment, the amount required by the government can be reduced to $$500,000.

The investor and his or her immediate family can live and work wherever they wish within the United States.

To apply for an EB-5 visa, you will need to present several documents, including the Form I-526, Immigrant Petition by Alien Entrepreneurand a letter detailing that you meet the visa requirements.

In addition, you must submit documentation supporting your EB-5 visa application, such as:

1. Evidence that you have established a legal business entity under the laws of the jurisdiction of the United States.

If you have made an investment in an existing business, evidence that your investment has resulted in an increase of at least 40% in the company's net worth, number of employees, or both. This evidence includes copies of certificates attesting to authority to do business in a state or municipality, evidence of transfer of capital to an existing business, and certificates of financial reporting and payroll records, among other documents.

3. If applicable, evidence that your company has established itself in a "labor incentive zone".

4. Evidence that you have invested or are actively in the process of investing the required amount in the area in which the enterprise is located. This evidence may include copies of bank statements, evidence of assets acquired for use in the venture or monies transferred or pledged to the new business venture in exchange for shares, loans or mortgages.

5. Evidence that the capital you will invest was obtained through legal means. The petition must be accompanied by foreign business records, tax returns filed within the last five years in or outside the U.S., and evidence of other sources of capital. You must also submit certified copies of any civil or criminal judgments, whether active or closed, filed against you, either inside or outside the U.S. within the last 15 years.

6. Evidence that your business will create at least 10 full-time positions. This evidence may consist of copies of tax records, Forms I-9, or other documents, or a business plan indicating when employees will be hired within two years.

7. Evidence that you will be engaged in the management of the company. You may include as evidence a statement of your job title and a complete description of your duties indicating that you are a corporate director or on the board of directors of the company. If the new company is a partnership, you must prove that you are directly involved in management.

If you meet all EB-5 visa requirements during a two-year conditional period, you, your spouse and unmarried children under the age of 21 will be eligible for permanent residence.

The process to obtain this type of visa is complex, so I recommend that you consult with an accountant or financial advisor, a corporate attorney and an immigration attorney before beginning the process.

For more information and immigration tips, read my blog inmigracionhoy.com.

Send your questions to preguntas@consultamigratoria.com. Include detailed information about your situation to better answer your questions.

Nelson A. Castillo, Esq. is an immigration attorney and author of The Green Card: How to Obtain Permanent Residency in the United States. He is a past president of the Hispanic National Bar Association and current president of the Westlake South Neighborhood Council of Los Angeles. To contact Mr. Castillo's office, please call (213) 537-VISA (8472).

The purpose of this column is to provide general information. There can be no guarantee or prediction as to what will be the outcome of the information presented by Dr. Nelson A. Castillo. The information should not be taken as legal advice for any individual, case or situation. Consult with an immigration attorney for personalized legal advice before beginning any immigration proceeding..

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