Immigration | EB-5 Entrepreneur Immigration | Direct EB-5 Investment | EB-5 Regional Center Affiliated Investment | Non-Immigrant Visas

EB-5 Direct Investment

Direct EB-5 investment requires an investor to invest in a new business, or purchase an existing business that is restructured, and create 10 direct and full-time jobs for U.S. workers as a result of this investment. The minimum investment is $500,000 if the principal place of business is located in a Targeted Employment Area (TEA, defined as 150% of the national federal unemployment rate), or in a rural area. Otherwise, the investor has to invest $1 million if the principal place of business is not located in a TEA or rural area (defined as a population no larger than twenty thousand inhabitants, and must not fall within a larger metropolitan statistical area).

For a direct investment case, at the time of I-526 filing, the investor needs to submit a detailed business plan to USCIS and explain how 10 full-time positions will be created by the business. When the I-829 petition is submitted to remove the conditions of the conditional green card, the investor needs to submit tax and payroll records to show that 10 full-time positions have been created. Essentially, the investor has 2.5 years from the date of I-526 approval to create 10 jobs (who have U.S. citizenship or green cards). Direct EB-5 investment also allows pooled investment. For example, if 5 investors want to invest in a 2.5 million business, located in a TEA, each investor would invest $500,000 into the business, and that business will need to create at least 50 full-time positions.

Advantages of Direct EB-5 Investment:

  • A high level of daily involvement in the business is preferred by those who wish to maintain a strong level of control over their investments and their businesses.
  • It is a good option for someone who has a definite desire to start and manage a business in the United States.
  • There is an annual quota of ten thousand total EB-5 visa available per year, and as yet that quota has never been reached in any given year. That is, there may be a visa retrogression for regional center affiliated EB-5 investors in the years to come, but direct EB-5 investors will have immediate visas available.
  • Regional centers, on average, offer a modest or low return on investors’ investments, whereas a direct EB-5 business has a chance of delivering a greater return on investment, if the investor manages the business well.
  • The USCIS I-526 petition processing time is faster than regional center affiliated I-526 petitions which can take over one year. The processing time for direct I-526 petition is currently between 8-11 months.

Disadvantages of a Direct EB-5 Investment:

  • Generally, the investor has to invest $1 million dollars rather than $500,000 in regional center affiliated projects.
  • The investor in a direct EB-5 investment has an open-ended financial exposure, beyond the required EB-5 investment amount, to the additional investments that it might take in order to keep the business operating, particularly if there is a downturn in business, and the business does not need ten full-time workers, but then the investor must maintain them in order to continue to qualify for the permanent residence in his/her I-829 petition.
  • The direct EB-5 investment program generally involves the higher level of investor involvement in the day-to-day management of the business. Although there are some existing programs in which the investor is a limited partner in a limited partnership operating under the direct Eb-5 program, and there is a general partner that manages the business, most investors who invest under the direct EB-5 program do so because they want to manage their own business. Day-to –day management can be delegated only under the limited partnership; otherwise, the investor must remain in charge of the daily management throughout the EB-5 process.
  • Direct EB-5 program I-829 petitions are subject to greater scrutiny by USCIS. USCIS usually issues at least one Request for Evidence (RFE) to obtain more documentation and clarification from the investor, and looks more aggressively to find ways to deny the petition. For example, USCIS looks closely at the employees in the ten new jobs, examining whether they are legally authorized to work in the United States, and employees’ time records to see if the employee in the job always works at least thirty-five(35) hours per week. An employer with inadequate time records could then be denied for failing to prove that his or her ten new full-time jobs are actually full-time. If the employer cannot prove that all of the employees are legally authorized to work in the United States, USCIS could disqualify enough workers in order to bring the total number of new direct jobs to below ten, in order to deny the investor for not satisfying the requirement of creating ten new full-time jobs. So, in many direct EB-5 investor cases, the investor tries to hire in excess of ten workers in order to have a safety margin.

Case Analysis Examples- for Direct EB-5 Investors

Case 1:Petitioner filed an I-526 petition USCIS based on an investment to develop, construct, and operate Surf Beach Hotel. The USCIS denied the petition. USCIS’ Administrative Appeals Office (AAO) affirmed the denial based on the petitioner’s failure to show capital at risk or a lawful source of funds. The USCIS Director had stated that cancelled checks do not prove payments have been made; the AAO disagreed. The AAO found that Petitioner demonstrated his investment of $1 million. However, the maximum expenditures in the record were not clearly attributed to petitioner’s funds and they accounted for less than one third of the total capital investment. The AAO concluded that Petitioner failed at the time of filing to show that the full $1 million was at risk or that it was reasonable to expect that he would be able to complete the project.

Case 2:Improper Filing Scrubs Investment in Car Wash Ming Ming Investment, Inc., WAC 98 231 54300 (AAO, March 30, 2001)

Petitioner filed an I-526 petition based on an investment in Ming Ming International, Inc. (MMII), a company that operates a car wash in Azusa, CA. The USCIS denied the petition. The AAO affirmed the denial, holding that Petitioner failed: (1) to show the path of his personal funds and an at-risk investment in the reconstruction of the commercial enterprise; (2) to show an adequate business plan that MMII would create additional 30 new jobs to support three alien entrepreneurs; (3) to show that the business reorganization had already taken place before the date of filing; and (4) to properly file the petition with signature of the petitioner/investor.

Petitioner failed to demonstrate $438,000 of investment of capital he claims were paid for shares purchased. AAO found inconsistencies in the record, together with Petitioner’s failure to submit audited financial statements and income statements for MMII, requested by the USCIS. Instead, the petitioner submitted only unaudited financial statements and a corporate tax return containing inconsistencies. Moreover, records in the stock ledger did not considerably indicate $438,000 of claimed paid-in capital.

Petitioner submitted a certificate evidencing he had a balance of $520,000 in a Chinese bank account. The AAO held, however, that there was insufficient evidence to show that the income was earned within five years from the date of filing the petition, or that Petitioner worked in a certain occupation through which he accumulated the capital over time. Nor, it held, was there evidence of the path of the funds.

The AAO agreed with USCIS that the business plan failed to show that the new enterprise would create 30 new full-time jobs to enable three investors to qualify for EB-5 status. The petitioner failed to demonstrate the number of employees that were employed before the purchase of the business. Also, Forms I-9 and Forms 941-Employers Quarterly Federal Tax Returns-were not sufficient enough to indicate whether the new 30 employees all worked at one time.

Petitioner claimed to have created a new commercial enterprise by reorganizing a preexisting business. However, without balance sheets for the employment-creating business before and after the sale or payroll documentation before and after the sale, the AAO concluded that Petitioner failed to demonstrate it expanded the net worth of or employment at the business by 40 percent. Thus, it held, Petitioner failed to show a new commercial enterprise was created.

Finally, the petition was signed and filed by the president of the company, not the alien investor. The AAO held that it could not approve a petition for classification as an alien entrepreneur when it was not filed properly by the alien on his own behalf.

Case 3: EB-5 Petitioner Unable To Debug Investment in Cyber Café
CNC and CyberSurf Café Ride, WAC 99 109 52543 (AAO, March 22, 2001)

Petitioner filed an I-526 petition based on an investment in a cyber café in Hawaii. The CSC had denied the petition for failing to prove that: (1) the investment qualified for reduced investment in a targeted employment area; (2) requisite capital was at risk; and (3) the petitioner’s funds were lawfully obtained.

The AAO added more reasons for denying the petition, including: an insufficient minimum investment; investment of capital not at risk; insufficient management; insufficient source of funds; no establishment of a new commercial enterprise; and no business plan to demonstrate employment requirements or timetable for hiring new staff.

The CSC found Petitioner failed to establish lawful source and path of funds because he did not submit evidence of his assets or of his income for the past five years. On appeal, Petitioner submitted U.S. bank statements and foreign language tax documentation for 1995 through 1998, but did not include English certified translations. The AAO found, however, that the untranslated documents failed to constitute evidence.

On the employment creation issue, Petitioner claimed to have six employees but did not submit quarterly wages, withholding reports, or payroll records. Petitioner submitted eight I-9 forms indicating CNC as the employer. The remaining I-9 forms indicated CyberSurf Café Ride as the employer. The AAO found Petitioner did not satisfy the employment creation requirement because he failed to show the required full-time employees or submit a comprehensive business plan.