Immigrant Visa without Labor Certification

Immigrant Investor Petition (EB-5)

An alien entrepreneur may seek immigrant status if he or she seeks to establish a new commercial enterprise:

  1. That the alien has established;
  2. In which the alien has either invested, or is in the process of investing $1,000,000 (or $500,000 for target employment areas); and
  3. Which will benefit the United States economy and create ten full-time employment positions for United States citizens or lawful permanent residents (other than the spouse, daughter or son of the alien investor).

The INS does not require immediate creation of 10 full-time positions for United States workers. If such workers in fact are already on the payroll of the organization at the time the investor is applying for a visa, tax records or INS
I-9 forms (Employment Eligibility Verification) or other documentation
may be supplied. However, in the more likely situation that the investment enterprise will only exist after the entrepreneur enters the United States, a copy of a comprehensive business plan projecting a need for no fewer than 10 qualified employees within two years and their anticipated hiring dates will be accepted.

A business plan should include the following:

  1. How the commercial enterprise is organized (whether as a corporation, general or limited partnership, business trust, joint venture, holding company, sole proprietorship, or other entity);
  2. The concept and purpose behind the enterprise;
  3. A description of the physical premises, including photographs
    (if available), or drawings of the planned premises if not yet constructed;
  4. Financial forecasts and projections for implementation of the business plan, including requested capitalization and anticipated return on investment, and estimated timetables for construction, commencement of operations, and hiring;
  5. Specific market research demonstrating that the target area for business will support it; and
  6. Credentials of key persons responsible for development and management of the business enterprise, including the investor if appropriate.

The business plan should be straightforward and comprehensible to ensure the investor understands all aspects of the investment, and so that INS adjudicators will know in a brief review that the investment will satisfy statutory and regulatory requirements for conditional residence.

Immigrant investors and their spouses and children enter the U.S. in conditional permanent resident status subject to termination after two years. To preserve permanent resident status, they must petition for removal of the condition during the 90-day period before the second anniversary of their original admission.

The petition for removal of the condition must include evidence that a commercial enterprise was established and that the petitioner “invested or was actively in the process of investing the requisite capital.” The investor must also show that he or she “sustained” these actions throughout the period of the investor’s residence in the United States.

One caveat for alien immigrant investors: the United States taxes such investors for their worldwide income during their two-year conditional residency.