EB-5 Investment Immigration Points to Consider

In the application of EB-5 investment immigration, there are points that should be carefully considered the capital is invested. The investor should evaluate not only the investment project, but also his or her own situation and preferences. Here are several points to consider :

Whether the investor wishes to manager the business

There are different types of investors. Some would like to manage their own business; while some investors want others to manage the business for them. Some may need to travel back and forth between the U.S. and their native country; and cannot spend regular longer terms at their investment business. Some would like to have control over the business he or she invested and to maximize profits.

For those who will apply for individual EB-5 investment business, the investors will be actively engaged in the management of the business and demonstrate that the investor has created 10 full-time jobs, or will create those jobs within two years of filing form I-526 petition. The individual EB-5 petitions fit the investors who would like manage business and who won’t travel much.

For those investors who had limited business experience or who do not want to run the investment business themselves, investing in regional centers seems to be a better choice. The investors do not need perform day-to-day managing tasks and do not need to worry about the issue creating 10 new full-time jobs.

Present the lawful source of investment fund

In the stage of filing I-526 petition, one main element is to demonstrate is the lawful source of investment. The purpose is to show where and how the investor originally obtained the funds to invest. In order to trace the funds, substantial documentation must be included in the petition package. The last five years of tax returns are always submitted. If a good portion of the fund was earned more than 5 years ago, the investor may be required to submit tax returns reflecting the years of highest income earned.

Whether investor has children that are aging out

Investors may wish to bring their children to the United States at the time the investors obtain their permanent resident status. If their children are under 21 years old at the time, their children can also receive permanent resident status as derivative beneficiaries. If their children are getting close to 21 years old, the investor may want to get his or her EB-5 application approved as soon as possible. In that case, regional center may be a better choice because it is normally quicker to compile than individual EB-5 cases.

The term of fund remains invested

Many investors are concerned with how long they would have to keep their one million or $500,000 investment fund invested. The USCIS’s position is that there is no specific required length of time that one would need to keep invested as long as the investment fund is committed until after the removal of conditions of permanent residence.

Investment capital needs to be “at risk”

One of the important elements of EB-5 application is that the investor’s investment needs to be “at risk” just like any business. You can make money, or you can lose money in any business investment. There is a misperception with many people that investing in regional centers is safe as far as their investment capitals are concerned. The investment at regional centers is at-risk just like individual EB-5 investment cases. The business of a regional center can go up or go down, and can go bankruptcy if the business is really bad. In such an event, the investor could lose his or her investment money.

Material Change of Business

The business invested may make changes which deviates from the business plan submitted in the I-526 petition. The USCIS in its December 2009 memo stating that material change of business can lead to denial of the later I-829 application. What is not clear is what is “material change.” The investor needs to evaluate the business to see whether any material change has occurred before he or she submits I-829 application. If there may seem to be material change, the investor should prepare for it in the application.

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