PERMANENT RESIDENT INVESTOR GREEN CARDS
EMPLOYMENT-BASED CATEGORY 5
By: Allen E. Kaye
Frequently Asked Questions:
Q.1: Who should invest?
Answer: EB-5 investors include
people from all walks of life; professionals, business people,
persons wanting to facilitate a child's education, and retirees.
Because the EB-5 visa permits employment in the US, many EB-5
investors become involved in charity or part time work. Simply
put, the EB-5 visa gives you the flexibility to do what you
want in the USA. If you don't want to actively manage your
business, you should consider a regional center EB-5 investment.
If you have a US citizen parent or child over 21 years of
age, you may consider family class visa categories. If you
have exceptional skills or are famous, you may qualify for
a Green Card based on your extraordinary ability. If you want
to manage your own business, consider an L-1 (Intra-company
Transferee), E-2 (temporary Treaty Investor), or EB-5 case
based on your own business which you control. If your goal
is to have a Green Card and not to actively manage a business,
it is most often cheaper or more convenient to utilize the
Regional Center EB-5 category rather than to start and maintain
your own business.
Q.2: Is EB-5 a truly passive investment?
Answer: The EB-5 regulations
require involvement in management or policy making. The regulations
deem a limited partner in a limited partnership that conforms
to the Uniform Limited Partnership Act, sufficiently engaged
in the EB-5 enterprise.
Q.3: How long does it take for an EB-5 application
to be approved and a Green Card issued?
Answer: It takes a few months
to make the investment, gather the necessary documents, and
file the petition. Most petitions are approved in two to four
months, some take longer. One can then apply for adjustment
of status in the U.S. or an immigrant visa overseas. Adjustment
of status for EB-5 cases can be processed in about six months,
but can sometimes take longer. The immigrant visa at the American
Consulate is about the same amount of time. After being granted,
it usually only takes a few weeks or months for the conditional
Green Card to arrive.
Q.4: Can money gifted by a parent or other
relative be used for an EB-5 investment?
Answer: Yes, provided that
any applicable gift taxes are paid. It must be demonstrated
that the gift is an actual arms length transaction and is
a not a mere ruse or that the gifted funds will be given back
after permanent resident status is granted.
Q.5: What is a "conditional" Green Card?
Answer: A conditional Green
Card is a temporary Green Card valid for two years. One year
and nine months after it is issued, a three-month window opens
up during which an individual must file another application
with the CIS to verify that all of the funds have been invested
and employment created. hen the conditional resident status
has been lifted, full resident status is granted and a permanent
Green Card is issued.
Q.6: Can I qualify for a Green Card another
way?
Answer: People working for
U.S. employers may be sponsored for a Labor Certification.
Many highly successful people may qualify for permanent resident
status as a person of extraordinary ability. Others may work
for a multinational company with offices in the U.S. and overseas
and be transferred to work in the U.S. As a result, they may
be granted permanent resident status. Contact Mark Ivener
or Martin Lawler for a consultation on other alternatives
for applying for permanent resident status.
Q.7: What documents must I prepare to process
my investor Green Card petition?
Answer: You must prepare
complete biographical information and must prove the source
of the investment funds. To prove the source of investment
funds, CIS requires five years of personal and business, if
any, tax returns, proof of ownership in any businesses and
business licenses. You must present a track record of an honest
course of dealing. If your capital came from a specific transaction,
such as sale of a house, inheritance or gift, you must prove
the transaction occurred, by providing an official document,
such as a closing statement or contract or other official
documents. This is not an exhaustive list. Other documents
may be required and vary on a case-by-case basis.
Q.8: What issues have been problematic in
EB-5 cases?
Answer: The most common
problem area has been insufficient documentation of the source
of funds. Many people try to disclose the least possible information
only to have the file returned with a request for further
information. It is better to provide too much information
rather than too little information. In this era of terror
alerts, and suspicions about money laundering, CIS case examiners
require a well-documented source of funds.
Q.9: Are EB-5 visas available to people
from any country in the world?
Answer: Legally yes. However,
people from countries that do not have reliable tax and other
financial documentation will find it much more difficult to
prove an EB-5 visa application and we would not recommend
these individuals pursue EB-5 visas.
Q.10: Where can I find a copy of the relevant
law and regulations to study?
Answer: Please go to the
Citizenship and Immigrations Services (CIS) web site. A direct
link to investment visa information is: http://uscis.gov/graphics/services/residency/investment.htm
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