THE EB-5 INVESTOR VISA FAQ

 

This Frequently Asked Questions (FAQ) Page Describes the the Berry Moorman Investor Visa Program and how the Program works with the investor to obtain an EB-5 Investor Visa (green card) for the investor and his or her family.

In this section, we have comprised some of the most commonly asked questions regarding EB-5 Investor Visa Program.

What is the EB-5 Investor Visa Program?

The Berry Moorman Investor Visa Program (the “BMPC Investor Visa Program”) takes advantage of the immigrant visa category for alien entrepreneurs known as the “EB-5 Immigrant Investor Visa,” created by the Immigration Act of 1990. In general terms, the EB-5 Visa requires an alien to “invest or be actively in the process of investing,” either US $1,000,000 in urban settings, or US $500,000 in rural settings, in exchange for the opportunity to obtain permanent residence (a “green card”) in the United States.

What are the requirements of the BMPC Investor Visa Program and the EB-5 Visa (green card)?

The BMPC Investor Visa Program and the EB-5 Visa (green card) require an alien to:

  1. Invest or be actively in the process of investing either US $1,000,000 in urban settings, or US $500,000 in rural settings;
  2. Ensure that the investment is active or “at risk”;
  3. Make the investment in a “new” or “existing business enterprise”;
  4. Demonstrate that the investment directly or indirectly results in the creation or preservation of ten full time (at least 35 hours per week) jobs for a two year period.
How many immigrant visas are allotted for this classification?

The EB-5 Visa is allotted 10,000 visas per year for aliens whose qualifying investments result in the creation or preservation of at least ten full-time jobs for U.S. workers. Three thousand immigrant visas are set aside for aliens who invest in areas of high unemployment or qualifying rural areas.

How is the EB-5 Visa (green card) different from the L-1 (Manager Transfer) or E-1/2(Treaty Trader Investor)?

Participation in the Investor Visa Program through the services of Berry Moorman P.C. yields almost immediate Legal Permanent Resident (LPR or “green card”) status. In contrast, the E-1/E-2 Treaty Investor and Treaty Trader programs allow for non-immigrant status only (no green card). When the qualifying trade or investment ends, so does the non-immigrant status. Likewise,the L-1 (intracompany transferee) is a non-immigrant classification (no green card).

Who may receive the permanent residency ("green card")?

An individual investor and his or her family (husband, wife and any unmarried children under the age of 21) may receive permanent residency. It is also possible for adopted children to be included in the family.

How long does it take for the investor and the investor’s family to receive the "green card"?

Processing time varies depending on  USCIS workload and may take  16 months or more.

Are any countries excluded from eligibility?

Residents of only a few countries are excluded (e.g., Iran and Iraq). In most cases, however,if the applicant is able to leave the excluded country and has the necessary capital to qualify under the program, Berry Moorman will be able to help the applicant qualify for visa (green card)approval  Also, due to the recent  travel ban, no EB-5 visas are  being issued to nationals of the North Korea, Syria, Iran, Yemen, Libya, Somalia and Venezuela.

How does an investor apply for the EB-5 Visa (green card)?

To qualify for an EB-5 Visa, an investor, through Berry Moorman, must apply to the USCIS and submit a number of required documents including: immigration forms, personal financial information, business plans, a legal brief on qualifications under the proposed application, geographic statistics and other supporting evidence.

What are the benefits of a "green card"?

Each person has his or her own reason for wanting permanent residence in the United States. But the common reason is the many benefits to the individual and the family:

  • The safety, education and freedom that the United States offers is superior to that of any other country in the world.
  • All legal permanent residents under the Investor Visa Program enjoy the same benefits as every other U.S. resident.
  • The United States is a “safe harbor” for your family as well as your personal and businessinvestments. Any member of the family with a “green card” can enter the United States atany time and stay as long as he or she wishes.
  • Investors have constant and easy access to the United States for personal, trade and business purposes.
  • Investors may work, live or own their own business anywhere in the United States — e.g.,California, Hawaii, Florida, New York, Washington, Texas, etc.
  • The United States has internationally recognized colleges and universities for both basic education and graduate study. As a resident, the investor can benefit from lower tuition costs. The tuition savings can easily equal the initial investment required for the Investor Visa Program.
  • The cost of living in the United States is less than that of most large industrial nations.
  • Consumer goods and services and housing are significantly less expensive than comparable services and goods in most other countries.
  • Students may work in the United States while they attend college, and then continue to work after college. This enables the student to pay for part of his or her education and to work while attending graduate and post-graduate studies.
  • Permanent residency facilitates admittance to medical school, which is often more difficult for foreign nationals.
  • The United States provides many financial, social and educational entitlements, including public schools, health and medical attention, social security and education.
  • After obtaining permanent residency, the investor has the ability to bring other family members to the United States after proper application. The investor can also obtain U.S. citizenship after five years.
  • The United States offers economic diversity, excellent economic opportunities, a superior standard of living and a variety of climates.
  • Permanent residency requires no renewal or reapplication. Other U.S. non-immigrant visas such as E-2 and H never result in permanent residency and require additional filings with the USCIS. Furthermore, U.S. immigration laws may change and prevent future approval for other types of visas where renewal of a visa is required. For this reason, a permanent visa is an important advantage.
How long must I remain in the United States each year?

The first requirement of any investor after receiving the visa (green card) at the United States Overseas Consular Office is to enter the United States within 180 days of visa (green card) issuance from the U.S. Embassy. The investor must then establish residency in the United States.  The United States, unlike Canada, does not require the investor to have a physical presence in the United States for any given amount of time (Canada’s requirement is 183 days out of each year).  However, under U.S. law the investor must establish and maintain the “intent” to be a resident.  Evidence of intent to reside includes opening bank accounts, obtaining a driver’s license, obtaining a social security number, paying state and federal taxes and renting or buying a home. The U.S.resident may work overseas if required, based upon the nature of his or her business or profession.For those permanent residents living outside the United States, Berry Moorman recommends that the investor and family should probably re-enter the United States no less than once every six months. The longer the investor and family are present in the United States, the less likely the government is to claim that the investor “abandoned” the United States as a permanent residence,thereby endangering his or her “green card” status. In some cases, investors may seek the issuance of a “re-entry permit,” which allows the USCIS to grant permission to remain outside the United States for as long as two years without having to re-enter the United States to maintain permanent resident status.

What is the difference between permanent residency and citizenship?

There are two ways to become a U.S. citizen. One is by being born in the United States or  being born to a U.S. citizen. The other way is by naturalization. In most cases, the first step in becoming a U.S. citizen through naturalization is to become a Legal Permanent Resident. Five years of permanent residency is one of the basic requirements for qualifying for naturalization. A second requirement is maintaining a physical residence in the United States for 30 months during the five years prior to the naturalization petition. Once he or she is a U.S. citizen, an individual is entitled to benefits including the right to vote and to hold public offices.

What is the difference between "conditional" and "unconditional" visas?

Under the EB-5 Visa, an investor who is approved for the EB-5 Visa receives a “conditional green card” (which is actually pink in color). The only difference is that the “conditional “greencard” must be reissued after two years. The cards are exactly the same in every other way, and offer the same rights and privileges. This process is based upon procedures established by the USCIS in other immigration contexts. For example, every marriage-based sponsorship case allows that the alien spouse initially receive a “conditional green card” for two years before the issuance of the unconditional card. The EB-5 Visa works the same way.

What are the tax implications of U.S. residency and the investment?

Any interest that is earned or profits on the investment that result in actual distribution of cash that are in addition to the investment may result in U.S. tax liability. It is extremely important to abide by the laws of the United States, which include not only immigration laws, but also tax laws. Berry Moorman’s tax advisors are able to provide tax related services according to U.S. law, and will refer you, upon request, to a professional tax authority in foreign jurisdictions who will help to minimize taxes as much as legally possible.

Who will provide the legal and business services of the BMPC Investor Visa Program?

The investor’s legal and business services will be handled by Berry Moorman P.C. Generally, we will provide all immigration general business advice to the investor. We often recommend having financial analysis and due diligence done on the potential investment by outside professionals, which we supervise.

Who is the legal counsel and how do they help?

Berry Moorman will perform the following services for each foreign national investor seeking permanent residence under the BMPC Investor Visa Program, and will do so under a separate legal retainer agreement between the investor and the firm. The services listed below will be performed in the United States and abroad and will assist in the evaluation of an investment project:

  • Confer with and qualify the investor and family for the U.S. EB-5 Visa (green card);
  • Prepare and file with the USCIS the petition to classify the investor as an alien entrepreneur and thus qualify the investor for immigrant visa classification;
  • Monitor and expedite, if necessary, the approval process at the USCIS and at the U.S. Department of State;
  • Assist the investor in completing all documents forwarded from the Department of State to the investor;
  • Prepare the investor and his family for the Department of State interview at the foreign consular post;
  • Appear with the investor and family at the interview (upon the investor’s request) with the Department of State at the consular post overseas, and assist in the interview process or appear at the interview before the USCIS in the United States;
  • Assist the investor and family in entering the United States and establishing lawful permanent residence in the United States;
  • Assist the investor and family in removing the condition from the permanent resident status within the last three months of the second year following the commencement of permanent residence;
  • Assist the investor in exercising a “sell back”, if that is the desire of the investor, and in obtaining the amount to be paid by the investment project/management team to the investor in connection with the “sell back”, or with the repurchase by the investment project/management team, should either the “sell back” or repurchase be exercised; and
  • Assist the investor in obtaining any financing services that may be necessary.
What is the “condition” placed upon the investor’s visa (green card), and what happens to the visa (green card) if my investment fails?

The condition was originally based upon the immigration marriage laws in order to prevent fraud. Since the purpose of the investment is job creation, the USCIS does not want the investor to immediately withdraw his or her investment after receiving permanent residency. The law requires the investment to remain for a minimum of two years. The investments of the Investor Visa Program administered by BMPC automatically qualify since all investments have a term of at least three years. In the event the investment fails and employment is lost, there are several different methods that can be used to protect the investor. First, the laws of the USCIS that relate to the removal of the condition allow for flexibility and good faith. Thus, it may be possible for Berry Moorman to obtain the removal of the condition even though the employment is not sufficient,provided the investor has dealt in good faith.

How does the investor obtain the “unconditional” visa (green card)?

After two years, Berry Moorman assists the client in applying to the USCIS for the investor to demonstrate that he or she has complied with the terms and conditions raised in the original EB-5 Visa (green card)application. Specifically, the investor must demonstrate that he or she has continued to make all required payments of the investment and that the requisite jobs have been created/preserved by the investment enterprise. This process was established to eliminate any visa fraud. Referring again to the marriage-based sponsorship example, the USCIS requires that before the permanent “greencard” may be issued, the alien spouse must demonstrate after two years that the marriage is still valid. The BMPC Investor Visa Program/EB-5 Visa is the same. Upon demonstrating that the investment is valid, the investor and family will be issued unconditional “green cards” that contain no expiration dates.

What is meant by qualifying investment “capital?”

The regulations define capital as cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur. A debt will qualify as capital only when the alien entrepreneur is primarily and personally liable for the indebtedness. The regulations permit indebtedness secured by the alien’s own assets to count as “capital.” This rule allows bank loans and therefore provides greater flexibility for the investor who may have assets that are being used for other personal and business purposes and are not immediately available for investment in an immigration program. The bank loan also broadens the number of investors eligible for the EB-5 Visa. Under the BMPC Investor Visa Program, an investor may meet all investment capital requirements through the use of initial cash investments complemented by a bank loan secured by the assets of the investor, should the investor require/request financing. This may include real estate or other real property, ownership of business assets, cash, stocks, bonds and other assets located inside or outside the United States or in the country of origin.

What do the regulations mean by the term “invest”?`

Under the EB-5 Visa regulations, an alien is required to “invest” or be “actively in the process of investing” the required capital. The mere intent of investing does not meet this requirement. However, the USCIS does allow investors to demonstrate the “commitment of the required amount” at the time of filing the immigration petition to satisfy the regulations. The BMPC Investor Visa Program requires that the investor only invest an initial percentage of the required capital — in some cases, as little as US $100,000 (for qualified rural settings), which remains in a legal, interest-bearing escrow account until the issuance of the immigrant visa (greencard).

What is the investment return?

The amount of the return differs according to the amount of the initial capital that is invested, type of investment project that is offered to the investor or chosen by the investor, and the term of the investment. The investor should be cautious that the return offered by some companies may sound too good to be true. Generally, if it sounds too good, that is because there are problems and the investment is not secure but is extremely risky. The question that the investor should ask is why a U.S. company that is financially strong should seek funds overseas when great amounts of capital are available in the United States from banks, investment companies and Wall Street? Many returns that are presented by immigration companies are based upon projected returns. These projections generally never result and the investor loses his investment and potentially his “green card” status. A careful review of the history of the performance must be made.

Are there any financing programs available?

Because many investors have assets which are not immediately available and liquid, Berry Moorman can help investors who are able to meet the requirements of the bank to obtain a loan for part of the investment. The investor must provide the initial cash — which may be as low as US$100,000 (for qualified rural areas). The financing is optional, but one way or another, the investor must complete the total cash investment of at least US $500,000 (for qualified rural areas) prior to the original EB-5 Visa (green card) application or prior to the application for the removal of the condition.

May a promissory note qualify under the regulations as “capital”?

A properly executed promissory note is recognized as a contribution of capital because it is a receivable and capital asset of the commercial enterprise in whose favor it has been executed. Currently, the USCIS is allowing notes to extend beyond the two-year conditional period in that such instruments represent Capital which is “at risk” under the regulations. In the past, the investor has been required to put up some amount of initial cash (as little as US $100,000 for qualified rural areas) and then finance the difference or balance with a promissory note. Promissory notes are secured by the assets of the investor. Promissory notes have been accepted by the USCIS as meeting the capital requirements of the EB-5 Visa. However, USCIS regulations require all capital to be invested prior to application, or prior to application for condition removal. Because of different interpretations of the law by government officers, the safest and best approach to assure approval is to have the total investment completed as soon as possible.

When may the investor exercise the "Sell Back" to exit the investment?

A “Sell Back” is a contractual right of an investor which allows for the selling of his or her interest back to the investment project/management team, triggered by the passage of specified time or occurrence. This right is often associated with a similar option known as a repurchase right. The repurchase right empowers the investment project/management team with the right to “buy back” the investor’s interest at a specified time or event. The investment project may contain both Sell Back and repurchase rights that may be used by the parties to allow an investor to exit the investment upon the passage of a certain number of years specific to the events. The investor agreements detail the terms and conditions that initiate this right. In some cases, the investor has the absolute right to exit the investment either in 36 or 60 months, after having completed all required investments and having fully complied with every aspect of immigration law. The Sell Back and repurchase rights may be incorporated for the benefit of the investor. The Sell Back price is usually predetermined at a fair market price, and is usually sufficient to enable the investor to pay off the financing arranged after the investor completes the initial payment. The Sell Back and repurchase right are optional provisions that may be offered by the particular investment project/management team to the investor.

In which company must an investor invest?

The type of investment project can be determined through Berry Moorman’s internal efforts, or through the efforts and/or objectives of the individual investor. For any investment project, Berry Moorman will pre-qualify the business enterprise so that it is able to meet the requirements of the USCIS. The law specifically requires the businesses to be new, expanding or troubled and further defines the requirements for each of those categories.

What investment enterprises qualify under the regulations?

Under the EB-5 Visa regulations, there are three types of qualifying investments for investor visa purposes: the new commercial enterprise, the expansion of an existing business, or the rehabilitation of a troubled business. They are defined as follows:

  • The “new commercial enterprise” is either the creation of an original business, or the subsequent or simultaneous restructuring of an existing business such that a new commercial enterprise results;
  • The “expansion of an existing business” may qualify through the investment of the requisite dollar amount such that a 40% increase in either net worth or the number of employees results; or
  • The “troubled business” investment requires the requisite dollar amount in a business which has been in existence for at least two years, and for a period of 12 to 24 months prior to the filing of the petition, has demonstrated at least a loss of profit equal to 20% of the business net worth.

A qualifying investment may utilize any one of these three types of business enterprises. However, most recently, investors have successfully utilized either the “new business” or “troubled business “situation, which qualifies for special, advantageous treatment by the regulations in terms of the job creation requirements. Prior investments have included restaurant chains, nursing homes, national hotel franchises, manufacturing companies and transportation companies. Berry Moorman will assist the investor in locating the best investments for the EB-5 Visa.

What is the Federally Designated Regional Pilot Center Program?

Should the individual investor request, Berry Moorman can provide many types of potential investments, including those that meet the requirements for the Regional Pilot Center. Businesses involved in the exporting of goods located in geographic areas approved as regional centers may meet the job creation requirements of the law using “indirect employment” based upon approved methodologies. The federally designated program center was approved by Congress under Section 610 (c) of the Appropriations Act of 1993. In order to meet the requirements of the Regional Pilot Center law, investments focus on export businesses that are members of the World Trade Centers located in specific regions within the United States. More information on the Federally Designated Regional Pilot Center Program is available to the investor upon request.

What are the obligations of the investor to participate in the investment?

Under the EB-5 Visa regulations, the investor must be “active” in the management of the investment. The investor must engage in the management of the new commercial enterprise, either through day-to-day managerial control or through policy formulation. However, the regulations do specifically allow that an investor will qualify as a “limited partner” as defined in the Revised Uniform Limited Partnership Act. Berry Moorman will ensure that the investment project meets all the regulatory requirements. This passive role allows the investor to continue to engage in his or her own business without needing to participate in the investment operations. Additionally, this allows the investor to live where he or she pleases, and gives him or her the option to enter and exit the United States without any obligation to manage the investment. Most importantly, the limited partner, like the corporate shareholder is only liable to the enterprise to the extent of the agreed upon investment. This business structure protects the investor.

What is an “escrow” account, and when does the investor transfer the money to this account?

An escrow account is a legal, interest-bearing account established in a bank by Berry Moorman to hold the initial deposit in trust until the completion of the EB-5 Visa (green card) processing. This type of account is commonly used in the sales of real estate, businesses and personal property. Berry Moorman, as a law firm regulated and monitored by the State Bar of Michigan, will establish an escrow account for the purpose of safely holding an investor’s funds until such time as the EB-5 Visa (green card) has been approved by the overseas consulate or an office of the USCIS in the United States. Under the agreements entered into between Berry Moorman, the investor, the participating bank, and the investment project/management team, the investor’s money is not authorized to be released from the escrow account by the bank until the EB-5 Visa (green card) has been approved. This process protects the investor.

How does the “escrow” account protect the investor against the risk of losing money?

The initial cash deposit from the investor is placed in a legal, interest-bearing escrow account by Berry Moorman. When an escrow account is established, the funds continue to belong to the investor; however, they are committed to be placed into the investment project upon EB-5 Visa approval. Berry Moorman will have an agreement with the investor that requires the funds to be released from the account only when the EB-5 Visa (green card) is issued by the U.S. Department of State Overseas Consulate Office or the USCIS in the United States. In the event that the EB-5 Visa (green card) is not issued within 12 months of the initial filing, the bank and Berry Moorman, under specific instructions, must return all funds in the account with interest to the investor.

What insurance is provided?

As an established law firm, Berry Moorman’s malpractice insurance protects the investor from any fraud as tied to the scope of the firm’s legal services. The insurance policy does not guarantee to the investor the return of the original investment amount, the return of legal fees or costs incurred, nor does it guarantee the issuance of a conditional green card or unconditional greencard.

What is the “bank assurance” and how does it protect the investment?

In some investment projects, a guarantee or assurance for the return of the investment or some fixed amount of return can be provided by the investment project as long as the investment is “at risk”. The guarantee should be readily marketable with complete liquidity to enable the investor to immediately receive the return of the investment or what is promised without having to deal with attorneys, litigation and complex financial solutions that usually result in losses and failure.

What is meant by “net assets”?

An investor’s net assets, or net worth, can be determined from a simple calculation: the combined value of all things owned, minus the combined value of all liabilities (debts). The assets may be from any legal source, anywhere in the world:

  • cash;
  • gifts and inheritances;
  • the net cash value of life insurance;
  • the value of personal property such as jewelry, art and antiques;
  • the proceeds from the sale of a business or real property (real estate);
  • the value of real property, including the family home and any additional homes;
  • the value of securities such as stocks and bonds, including stock in a family business.

(Naturally, funds that come from such sources as smuggling or the sale of illegal drugs are not allowable.)

Verification of assets and the sources of those assets will be required. It will not be necessary to document or reveal all assets, but only enough to meet the requirements of the USCIS and the EB-5 Visa — an absolute minimum of US $500,000 (for qualified rural areas), in addition to legal and filing fees. The easiest proof of net worth, of course, is a bank account with actual cash.

Must the investor have previous business experience or education?

Under the EB-5 Visa regulations, the investor is not required to have any prior business experience. Nor is the investor required to demonstrate any minimum level of education. The only requirement for the investor is that he or she have the required net worth and initial capital. This is a significant point of difference between the U.S. and Canadian programs.

What can disqualify an investor from participating?

There are very few disqualifying or exclusionary events under the law. A criminal record involving crimes of moral turpitude is disqualifying, unless it can be proven that the crime was political in nature or occurred over 20 years prior to the application. A few major medical problems might also exclude an applicant, but for the most part this can be avoided if it can be proven that the applicant will be supported by others and therefore avoid being a recipient of government medical assistance. Berry Moorman can help applicants determine what waivers may be available for eligibility.

Can an investor apply if the investor has been rejected or terminated in the past by USCIS for an L-l, B, or other visa?

Rejection in the past does not disqualify the applicant, unless the reasons were related to immigration fraud or other major problems. The applicant, if properly represented by legal counsel, can generally receive a waiver. It is most important that all problems of a criminal or medical nature be reported to Berry Moorman in advance of application.

Can an investor apply if the investor is currently out-of-status (i.e., lived in the United States, but does not have a current visa)?

Out-of-status nationals are no longer permitted to apply for permanent residency from within the United States. They must first return to their country of origin and apply through the United States Embassy there. Examples of “out-of-status” individuals are students and tourists who no longer have valid visas because they remained in the United States after their visas expired. In some cases, the “out-of-status” investor may need to apply for a waiver of inadmissibility. Once the petition is approved and individual’s adjustment of status application is filed, the applicant becomes legal and even qualifies for work authorization or advanced parole (permission to travel outside of the country during the conditional green card period).

What is meant by the requirement that the investor's assets be “lawfully gained”?

Under the regulations, the investor must demonstrate that his assets were gained in a lawful manner. This requires the investor to prove his or her net worth was obtained through lawful business, salary, investments, property sales, inheritance, gift, loan or other lawful means. The BMPC Investor Visa Program requires investors to reveal where and how they received their assets in the amount of at least US $500,000 (for qualified rural areas) that are used for qualifying for the program and any applicable bank loan. This may be accomplished through certificates by the investor’s licensed accountants, lawyers, court records, salary statements, tax statements, real estate documents, etc.

EB-5 Investment Visa Attorneys

Randolph M. Wright
Shareholder

BIRMINGHAM OFFICE 
Tel: (248) 645-9680
Fax: (248) 645-1233

Simon M. Edelstein
Attorney, Of Counsel

BIRMINGHAM OFFICE 
Tel: (248) 645-9680
Fax: (248) 645-1233

BERRY MOORMAN INVESTOR VISA PROGRAM

For further information or inquires regarding the BMPC Investor Visa Program or the EB-5 Visa, qualification as an investor, investor financing assistance, or qualification as a potential investment project seeking foreign investment capital, please contact one of our attorneys.

 

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