About the E-B5 Immigrant Investor Visa
USCIS administers the Immigrant Investor Program, also known as “EB-5,” created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a pilot immigration program first enacted in 1992 and regularly reauthorized since, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.
All EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise:
- Established after Nov. 29, 1990, or
- Established on or before Nov. 29, 1990, that is:
1. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
2. Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs
Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:
- A sole proprietorship
- Partnership (whether limited or general)
- Holding company
- Joint venture
- Business trust or other entity, which may be publicly or privately owned
This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.
Note: This definition does not include noncommercial activity such as owning and operating a personal residence.
Job Creation Requirements
- • Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.
- • Create or preserve either direct or indirect jobs:
- o Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.
- o Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.
Note: Investors may only be credited with preserving jobs in a troubled business.
A troubled business is an enterprise that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20 percent of the troubled business’ net worth prior to the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.
A qualified employee is a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States.
Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the Immigrant Investor Pilot Program, “full-time employment” also means employment of a qualifying employee in a position that has been created indirectly from investments associated with the Pilot Program.
A job-sharing arrangement whereby two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions or full-time equivalents even if, when combined, the positions meet the hourly requirement per week. The position must be permanent, full-time and constant. The two qualified employees sharing the job must be permanent and share the associated benefits normally related to any permanent, full-time position, including payment of both workman’s compensation and unemployment premiums for the position by the employer.
Capital Investment Requirements
Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act.
Note: Investment capital cannot be borrowed.
Required minimum investments are:
- General. The minimum qualifying investment in the United States is $1 million.
- Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000.
A targeted employment area is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate.
A rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.
State Involvement in the EB-5 Visa Program
There is no state involvement needed if the investment in the new commercial enterprise meets or exceeds the $1,000,000 investment level. Such investment may be made in any location in the United States and without respect to high unemployment in the area. If the investment in the new commercial enterprise is made at the $500,000 investment level, state involvement may be necessary in designating the area of the enterprise as a TEA. However, state designation is not essential. Pursuant to the EB-5 federal regulations, there are two ways for a visa applicant to show that the area in which the new commercial enterprise is going to principally do business is a high unemployment area.
(A) Designation of TEA by USCIS:
Designation or acknowledgement of a TEA by the USCIS could be achieved by the visa applicant submitting “evidence” that the metropolitan statistical area, the specific county within a metropolitan statistical area, or the county in which a city or town with a population of 20,000 or more is located, in which the new commercial enterprise is principally doing business has experienced an average unemployment rate of 150% of the national average rate. This process is available pursuant to 8 CFR §204.6(j)(6)(ii)(A).
(B) Designation of TEA by state government: A letter from an authorized body of the government of the state in which the new commercial enterprise is located which certifies that the geographic or political subdivision of the metropolitan statistical area or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business has been designated a high unemployment area. This process is available pursuant to 8 CFR §204.6(j)(6)(ii)(B).
Certified List of Targeted Employment Area (TEA) in California
In order to aid investors who would like to apply for an EB-5 visa with the $500,000 per investment level in a new commercial enterprise in California, the State will post the list of the designated areas but the certifications will be issued on an individual basis.
Identifying Qualified TEAs
Step One: Qualifying Cities, Counties, CDPs, or MSAs
Identify whether your project is in a designated metropolitan statistical area, county, city or CDP using the list below. If your project is in one of the following such areas then a certification could be issued – step four. If not, continue to Step Two.
Step Two: Find Your Census Tract
If your project does not fall into a TEA that is on the designated list posted under Step One, identify which census tract your project is located using the database below then continue to Step Three.
Note: From the U.S. Census webpage, use the “Geographies” tab on the right hand toolbar and search using “Address.” Once you have searched, use the “Census Tract” number.
Step Three: Qualifying Census Tracts
(A) Single Census Tract: Identify whether your project is in a designated high unemployment census tract using the list below.
Note: Census Tract numbers may include preceding and trailing zeros, e.g. “Census Tract 13” will be shown as 0001300.
(B) Special TEA: Commencing May 1, 2013, GO-Biz will allow applications for a Special TEA for projects that do not meet the existing standard, pre-calculated certification categories. GO-Biz will certify Special TEA applications under the following criteria:
- Projects can receive an EB5 Special TEA certification if they are located within an area of twelve or fewer contiguous Census Tracts with a total average unemployment rate of 150% the national average.
- Requests for a special TEA should include a table listing of each census tract with its corresponding unemployment rate and a map showing the project address.
- A supporting letter from the local Economic Development Corporation (EDC) or County or City in which the project is to be located must be provided. The letter must indicate the economic development corporation’s concurrence that the proposed census tract will reasonably be a source of workforce for the project.
IMPORTANT: If your project is NOT in a qualifying MSA, county, city, CDP, individual or contiguous census tracts designated as a TEA by the State of California, your project does NOT qualify for certification from the state. However, you can still apply to USCIS without the state certification and provide evidence on your own showing that the new enterprise is in a high unemployment area.
Step Four: Certification Letter
If your project is located in a designated TEA then the state will provide a customized certification letter to prove that.
Please send the following information to: EB5info@gov.ca.gov (Subject: “Certification Application”)
Name of individual investor or entity
Name of new business or project
Address of new business or project
City, County and Zip Code
Census Tract Number
Description of the project, including job creation if applicable (500 words or less)
Mailing address for sending the certificate
Additional Policy Guidelines
Please, read the following policy guidelines applicable to this TEA certification:
- This designation and certification of TEAs is based on the 2012 calendar year unemployment data estimates published by the state. California selected to use the most recent calendar year period labor force and unemployment estimates for TEA certifications. There will be no other method used and the state is not going to certify TEAs on the most recent 12-month basis.
- This designation of TEAs in California is effective from May 1, 2013, through April 30, 2014, when a new certified list will be issued based on calendar year 2013 unemployment data.
- Once issued, the customized certification is valid for one year from the date of approval.
- This designation and certification of TEAs is an exhaustive list of TEAs by the State of California. There will be no other areas or subareas designated and certified as TEAs.
- Investors who received special area designations in previous years may request a renewed certificate if it is for the same investment project, it covers the same subarea, and the then current unemployment data provides a high unemployment rate for the aggregated area. Such requests will be handled on a case-by-case basis and renewed certificates might be issued at the discretion of the state.
FURTHER EB-5 RESOURCES