Eng & Nishimura

The EB-5 immigrant category was established in 1990 to allow certain Employment Creation Investors/Entreprenuers to immigrate to the US.

In order to qualify for EB-5 classification, the Entreprenuer must meet all of the following criteria:

1. Must be seeking to enter the United States for the purpose of engaging in a new commercial enterprise. For purposes of the EB-5 category “new” means established after November 29, 1990.
2. Must have invested after November 29, 1990, or be in the processes of investing capital in an amount generally not less than $1 million. (Individuals investing in “targeted employment areas,” must invest a minimum of $500,000.00.)
3. The investement/commercial enterprise must benefit the US economy and must create at least 10 new full-time jobs for US workers other than the investor, his or her spouse, and his or her children. Only actual employees of the enterprise can be counted, and the hours worked by part-time employees cannot be added to meet the full-time requirement.

For purposes of the EB-5 category, “targeted employment areas” are defined as a rural area or an area that has experienced, as of the date of the investment, high unemployment rates of at least 150% of the national average.

The capital investment must be at risk. Case law has established that arrangements involving guaranteed interest payments, buy and sell options, and other mechanisms designed to limit an investor’ do not satisfy the requirements of the statute.

The EB-5 is initially granted on a conditional basis for a period of two years. Ninety days prior to the two-year anniversary, the investor must apply to get the condition removed and must establish that all three criteria have been met.

Between 1990 and June, 2004, only 653 investors had been granted legal permanent residence.