How can an INVESTOR live and work in the United States?
The easiest way to explain how an investor can live and work in the U.S. is to begin with a summary of U.S. immigration law. This is the “big picture.” Once you see all of the possibilities, it can help you decide which option will work best for you.
U.S. Immigration has two main categories: permanent residence visas (also called “immigrant visas” or “green cards”) and temporary residence visas (also called “nonimmigrant visas”).
1. Permanent Resident Visas (Green Cards)
A permanent resident visa, or green card, is normally what people want, because it permits PERMANENT residence in the U.S. A person with a green card can generally live anywhere in the U.S. and can work for anyone without restriction. But, a green card is difficult to get.
There are four main ways to get a green card:
- Family sponsored green cards
- Employment based green cards
- US green card lottery (diversity green card), and
- Political Asylum.
To qualify for a family sponsored green card, you must have a very close relative who is a U.S. citizen or permanent resident (green card holder). Husbands and wives of U.S. citizens, parents of U.S. citizens, and children under the age of 21 of U.S. citizens (including step children) have top priority and can qualify for a green card relatively quickly.
Other family members, such as husbands and wives of permanent residents, children over the age of 21 of U.S. citizens and permanent residents, and brothers and sisters of U.S. citizens can also qualify for family sponsored green cards. But, these family members must wait for a green card to be available (there are waiting lists), which can take anywhere from five to 15 years!
On occasion, an investor who is not married and may qualify for some other type of green card ends up marrying a U.S. citizen. When this happens, a family sponsored green card can be one of the fastest and least expensive ways to qualify for permanent residence. However, the U.S. government is very strict about proving that the marriage is bona fide and usually the investor who marries a U.S. citizen must show that he or she is still married and living with the U.S. citizen two years after issuance of the green card in order to remain in the U.S. This is not a common way for an investor to get a green card, but it happens on occasion.
Employment based green cards are often the best possibility for investors. There are five types:
- EB-1: for aliens with extraordinary ability, outstanding professors and researchers, or multinational business managers and executives.
- EB-2: for aliens with exceptional ability or aliens with advanced degrees (employer/sponsor required)
- EB-3: for professional workers (with university degree), skilled workers and unskilled workers (employer/sponsor required)
- EB-4: for religious workers
- EB-5: for aliens who invest $1 million and create 10 new full time jobs (in limited situations, an investment of $500,000 is acceptable).
Processing times for employment based green card vary widely. An EB-1 or EB-5 application can be approved in less than 1 year. However, an EB-3 application could take more than 5 years.
Note that if an applicant qualifies for an employment based green card, his or her spouse and children under 21 will automatically be eligible as well subject only to a background check.
For investors, the EB-1 category for “multinational business managers and executives” and the EB-5 category for “immigrant investors” are the categories most often used to qualify for a green card.
To qualify for the EB-1 Multinational Manager or Executive Green Card, an applicant must prove all of the following:
- There must be a U.S. company or organization that is active and conducts regular and systematic operations. We call this the “U.S. Employer.”
- There must be a company or organization located outside of the U.S. that is active and conducts regular and systematic operations. We call this the “Foreign Employer.”
- The U.S. Employer and the Foreign Employer must be related entities, which means that one entity must own the other or the same person or persons must own a controlling interest in each entity.
- The applicant must have worked for the Foreign Employer for at least 1 full year as an executive or manager prior to coming to the U.S.
- The applicant must work for the U.S. Employer as an executive or manager NOW or AFTER the green card is approved.
- The U.S. Employer must prove that it has the “ability to pay” the applicant at the time the green card application is filed AND at the time the application is approved.
To qualify for the EB-5 Immigrant Investor Green card, an applicant must prove all of the following:
- The applicant must invest in a new commercial enterprise
- The applicant must participate in the management of the enterprise
- The applicant must make the required investment. This is usually $1 million, unless the business is located in a targeted employment area (a farm area or area of high unemployment). The investment requirement in a targeted employment area is $500,000. The investment must be in the business and can include the business real estate, the equipment, inventory, improvements to premises, fixtures, franchise fee, and other startup expenses.
- The investment business must create 10 full-positions for U.S. workers within 2 years (exception—if the investment is in a “troubled” business, then this requirement can be met if 10 jobs are preserved rather than created).
- The applicant must clearly demonstrate the source of investment funds.
We can provide more information about these EB green card options upon request.
The green card lottery (diversity green card) is government program designed to increase immigration from countries that do not produce a large number of immigrants to the U.S. Only people born in certain countries can qualify (for example, people born in Canada, Mexico, England, India, China, and the Philippines can not participate).
Each year the government selects 100,000 winners for 50,000-55,000 green cards. The government assumes that some winners will not qualify. The time to enter the green card lottery changes every year, but it is usually between October and December. For more information, see the government’s lottery website: http://www.dvlottery.state.gov/
Our firm does not handle applications for political asylum or refugee status. However, this is one way to qualify for a green card. To qualify, an applicant must prove he or she has been persecuted in the past or has a well founded fear of persecution in his or her home country based on race, religion, nationality, political opinion or membership in a particular social group. Asylum applicants may apply for asylum even if he or she entered the U.S. illegally or if he or she is in the U.S. on an expired visa/I-94. Generally, asylum applicants must apply for asylum within one year of their arrival in the U.S. but there are several exceptions which will allow the filing of an asylum application after one year.
2. Temporary Visas
Many clients prefer to be in the U.S. before or during a green card application. Therefore, they first come to the U.S. on a temporary visa. There are about 30 different kinds of temporary visas. The most common temporary visas for investors are as follows:
- E-2 Treaty Investor Visas, which permit investors from certain countries to invest a substantial amount of money and acquire a controlling interest in an active U.S. business. The visa is issued for up to five years and is renewable. The investor can work in his or her own business. The spouse can qualify for an unrestricted temporary work card. Children up to the age of 21 can accompany the parents and attend school, but cannot work. This visa is generally the best option for investors if the investor comes from a country that has an investment treaty with the U.S. Eligible countries include the United Kingdom, Ireland, Canada, France, Germany, Spain, but not Russia, Venezuela or Brazil.
- H-1B Visas for Workers in Specialty Occupations, which permit employment of professional level workers by a sponsoring employer. The visa is issued for up to three years and can be renewed another three years (additional renewals are possible in some cases). This visa is not that common for investors, but can be useful if the investor does not qualify or an E-2 Treaty Investor Visa. The investor would essentially be an employee of his or her own business. Note that the investor must be employed in a position that normally requires a university degree and must have earned a university degree or the equivalent in education and work experience. General managers and company executives usually do not qualify for the H-1B visa, because the government takes the view that a university degree is not required to perform this job. But, the visa can work for management analyst, certain financial management and marketing positions.
- L-1 Visas for Multinational Managers, Executives and Specialized Knowledge employees who are being transferred to the U.S. by a related international company. This visa requires that the investor worked as a manager or executive or specialized knowledge employee for one full year out of the past three years for an active company outside the U.S. The government likes to see payroll documents to confirm employment for one full year. This employee can be transferred to a U.S. company to serve as a manager or executive or specialized knowledge worker if the U.S. company is related to the employer abroad, for example if one company owns the other or the same person or persons owns a controlling interest in both companies. This visa can be difficult to get for new and/or small companies. It can be useful, however, if the investor does not qualify for the E-2 investor visa but continuous to own and operate a business outside the U.S.
- O-1 Visas for Aliens with Extraordinary Ability who are seeking temporary employment. This visa is issued for up to three years and can be renewed in one year increments. This visa requires an employer in the U.S. The employer must show that it wants to employ the investor and that the investor has extraordinary qualifications in his or her field of endeavor. This is not a common visa for investors, but can be useful if the investor has received a lot of publicity, has patents, has received awards, or played a significant role in the development of a new franchise concept.
For more information on options for investors, please contact me anytime.
RE: EB-5 “IMMIGRANT INVESTOR” GREEN CARD
The following is a list of the requirements for the EB-5 “immigrant investor” green card with an investment of $500,000 to $1 million:
To qualify for the immigrant investor green card, the foreign investor must meet each of the following requirements at the time of making the application:
1. The investor must have invested or be in the process of investing $500,000 or $1 million in a business enterprise.
The “investment” can be in the form of cash, cash equivalents (e.g. certificates of deposits, treasury bonds), equipment, inventory, other tangible property, or money obtained through a loan (the loan must be secured by assets owned by the foreign investor not including the investment being used for the green card).
The government will consider an application with an investment of $500,000 if the business is located in a “targeted employment area,” which is generally considered to be an agricultural area or high unemployment area. We can provide a list of rural areas and high unemployment areas in the state of Florida and can request a case by case determination based on the census tract in which the jobs will be created.
2. The capital invested must have been obtained through lawful means.
To prove this requirement, we must provide extremely detailed information about how the investor acquired the money to invest and how the money was brought to the US.
3. The investment must benefit the US economy and must create at least 10 new full-time jobs.
We must provide evidence that the new commercial enterprise will create at least 10 full-time positions in the U.S.—not including yourself, your spouse, sons or daughters, or any temporary or nonimmigrant workers, or individuals who are not authorized to work in the United States.
You will need to submit a comprehensive business plan with personnel projections showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than 10 employees will result. The projections must include the approximate dates, within the next two years, and when each employee will be hired, their job title, projected hours of employment and projected wage.
There is an exception to this rule. The investor does not need to show that he or she has created 10 new full-time jobs if the investment is in a “troubled business” (this term in defined below). If the investor makes an investment in a “troubled business,” then the investor only must show that the number of employees will stay the same after the investment is made. We still must provide a business plan with personnel projections as well as Photocopies of tax records, Forms I-9 (Employment Eligibility Verification), or other relevant documents for the qualifying employees.
A “troubled business” means a business that:
- has been in existence for at least two years,
- has incurred a net loss for accounting purposes during the 12 or 24 month period prior to the date of making the green card application, and
- the loss for the 12 or 24 month period is at least equal to 20% of the business’ net worth prior to the period of losing money.
The investment must be in a “new commercial enterprise.”
A “new commercial enterprise” can be established in any of the following ways:
- by creating an original business
- by purchasing an existing business (or the assets of an existing business) and reorganizing or restructuring the business, or
- by investing additional funds in an existing business so that a substantial change in the net worth or number of employees results. A “substantial change” means a 40% increase in the net worth of the business, or a 40% increase in the number of employees; so that the new net worth or the new number of employees is at least 140% of the total prior to the investment.
The investor must be engaged in the active management of the business, either through day-to-day managerial control or through policy formulation.
Essentially, this means that the investor should be either an officer or a director of the business. If the business is structured as a limited partnership with the rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act, the petitioner will be considered sufficiently engaged in the management of the new commercial enterprise.
Special note re regional centres
In addition to investing in your own business, an EB-5 investor can invest in a “Regional Center.” With a regional center investment, the investor’s funds are pooled with other investors for one large project. The regional center manages the investment project and makes the job creating economic impact. The USCIS will consider direct employment and indirect employment for the job creation requirement. This reduces the amount of work for the investor. More information can be provided about regional center investments.
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