Starting a business is daunting, especially if you do not know whether your visa or green card petition will be approved for you to stay in the U.S. to continue to grow your business. We understand. We have the success record to prove that you do not need hundreds of thousands of dollars in initial investment as long as you have a viable plan in place and show USCIS that you, and only you, have the potential to ensure the success of the business, to employee U.S. workers, and to benefit the U.S. economy.
We have proven workable relationships with other professionals who have put together documents and plans to provide documentation in these areas to USCIS. To successfully have the documentation and evidence that USCIS is looking for, you will need a business formations lawyer, an accountant, a business plan writer, and possibly an economic analyst (if you are purchasing a business). We are able to do work with you on certain business plans for traditional businesses but for some complex business ideas, we may recommend a business plan writer that has a proven record of success with complex businesses. If that is the case, we would be closely involved in the drafting process to ensure that all aspects of the case are captured in the plan.
* Working with our firm, you can trust that we have partners in these areas that have been proven successful. For some examples of this, see Success Stories. With this team in place, these are the options for a successful green card or work visa through creating a business:
We have successfully created strategies for our clients to create businesses and then use that business as an argument for self-petitioning for the green card based on EB-2 National Interest Waiver. We understand that it may be daunting to do this from scratch, that’s why we are here. It is also extremely important to consult with us while you have plenty of time on your current visa to put together a plan for your business.
While you cannot engage in unauthorized work while on B1/B-2 Visitors Visa, while on F-1 student visa (other than CPT or OPT), or while working for an employer through another work visa, you can set up your business. However, there is a fine line between what is allowed and what is not. Please consult with an experienced immigration attorney if you plan to do this.
Foreign Nationals from These Countries Qualify
To qualify for E-2 classification, the treaty investor must:
- Be a national of a country with which the United States maintains a treaty of commerce and navigation;
- Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and
- Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
“Investment” is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. The capital must be subject to partial or total loss if the investment fails. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity. See 8 CFR 214.2(e)(12) for more information.
A substantial amount of capital is:
- Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
- Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
- Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.
A bona fide enterprise refers to a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.
All EB-5 investors must invest in a new commercial enterprise that was established:
- After Nov. 29, 1990; or
- On or before Nov. 29, 1990, that was:
- Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results; or
- Expanded through the investment, resulting in at least a 40% increase in the net worth or number of employees.
- “Commercial enterprise” means any for-profit activity formed for the ongoing conduct of lawful business, including:
- 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, if each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.
Job Creation Requirements
- An EB-5 investor must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying employees.
- For a new commercial enterprise not located within a regional center, the new commercial enterprise must directly create the full-time positions to be counted. This means that the new commercial enterprise (or its wholly owned subsidiaries) must itself be the employer of the qualifying employees.
- For a new commercial enterprise located within a regional center, the new commercial enterprise can directly or indirectly create the full-time positions.
- Direct jobs establish an employer-employee relationship between the new commercial enterprise and the persons it employs.
- Indirect jobs are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise.
- In the case of a troubled business, the EB-5 investor may rely on job maintenance.
- The investor must show that the number of existing employees is, or will be, no less than the pre-investment level for a period of at least two years.
- A troubled business is one that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period before the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20% of the troubled business’ net worth before the loss. When determining whether the troubled business has been in existence for two years, USCIS will consider successors in interest to the troubled business when evaluating whether they have been in existence for the same period of time as the business they succeeded.
- A qualifying employee is a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the United States, including a conditional resident, temporary resident, asylee, refugee, or a person residing in the United States under suspension of deportation. This definition does not include immigrant investors; their spouses, sons, or daughters; or any alien in any nonimmigrant status (such as an H-1B nonimmigrant) 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 regional center program, full-time employment also means employment of a qualifying employee in a position that has been created indirectly that requires a minimum of 35 working hours per week.
- A job-sharing arrangement where 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 even if, when combined, the positions meet the hourly requirement per week.
- Jobs that are intermittent, temporary, seasonal, or transient do not qualify as permanent full-time jobs. However, jobs that are expected to last at least two years are generally not considered intermittent, temporary, seasonal, or transient.
Capital Investment Requirements
Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by immigrant investors, if they are personally and primarily liable and the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital will be valued at fair-market value in U.S. dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) will not be considered capital for the purposes of section 203(b)(5) of the Act.
Note: Immigrant investors must establish that they are the legal owner of the capital invested. Capital can include their promise to pay (a promissory note) under certain circumstances.
The minimum investment amount is $1,800,000 for petitions filed on or after 11/21/2019. If we are able to establish that your business is located in a Targeted Employment Area (TEA), the minimum investment amount drops to $900,000. Future adjustments will be tied to inflation (per the Consumer Price Index for All Urban Consumers, or CPI-U) and occur every five years.
A TEA can be, at the time of investment, either:
- A rural area; or
- An area that has experienced high unemployment (defined as at least 150% of the national average unemployment rate).
- A rural area is any area other than an area within a metropolitan statistical area (MSA) (as designated by the Office of Management and Budget) or within the outer boundary of any city or town having a population of 20,000 or more according to the most recent decennial census of the United States.
- A high-unemployment area may be any of the following areas, if that area is where the new commercial enterprise is principally doing business and the area has experienced an average unemployment rate of at least 150% of the national average unemployment rate:
- An MSA;
- A specific county in an MSA;
- A county in which a city or town with a population of 20,000 or more is located; or
- A city or town with a population of 20,000 or more outside of an MSA.
- A high-unemployment area may also consist of the census tract or contiguous census tracts in which the new commercial enterprise is principally doing business, which may include any or all directly adjacent census tracts, if the weighted average unemployment for the specified area based on the labor force employment measure for each tract is 150% of the national unemployment average.