FOREIGN INVESTMENT OPTIONS
Businesses in the US can benefit from foreign investment through the use of the immigration laws in several different ways, including non-immigrant and immigrant options.
Non-Immigrant/Temporary Visa Options
E, Treaty Visas: Visas for individuals engaged in trade or investing in the US
The E nonimmigrant visa classification allows a national of a treaty country (a country with which the US maintains a treaty of commerce and navigation) to be admitted to the US solely to engage in international trade on their own behalf or to invest in a company. Certain employees of such a person or of a qualifying organization may also be eligible for this classification.
a. There must be a treaty between the US and the individual’s country of nationality.
b. Majority ownership or control of the investing or trading company must be held by a national of the country that has the treaty with the US.
c. Each employee or principal seeking E status must hold the same nationality as the company.
a. The company must be engaged in trade, which is defined as the international exchange, purchase, or sale of items of trade (goods or services) between the US and the treaty country.
b. Trade must be substantial. The amount of trade must be sufficient to ensure a continuous flow of international trade between the US and the treaty country.
c. Trade must be principally between US and the treaty company. This means that more than 50% of the total volume of international trade must be between US and the treaty country.
d. The employee or principal in this visa category must be coming to the US to serve the company in a managerial capacity or in a capacity involving specialized skills.
e. If a binding trade contract exists, the E1 visa may be granted before the company is in business.
a. The funds invested must belong to the investor, they must have been legally obtained, and they must be placed at risk. An at rick investment is one where there is no guarantee that the investor will recover the investment.
b. The investment must be in commercial enterprise. Passive investment, such as the purchase of real estate, is not allowed.
c. The investment must be substantial. USCIS will look at the proportionality of the investment, the lower the cost of the business, the higher percentage will be required to be invested.
d. The investment cannot be marginal, it cannot be solely to earn a living for the investor and their family. When deciding whether an investment is marginal, factors such as the expansion of job opportunities, the generation of other sources of income, and the generation of income substantially above what would be considered a living will be considered.
e. The investor will have an essential role in the enterprise will develop and direct the investment.
The visa is usually given for a 5 year period. During the validity of the visa, the individual may travel in and out of the country and, every time they re-enter the US, a 2 year period of authorized stay is given. If the visa expires before the 2 year period of authorized stay expires, the individual may remain in the US until the authorized stay expires. It is not necessary for the E visa holder to have a residence abroad, but they will need to state their intention to leave the US when the authorized stay expires.
(Green Card) Options Employment Based – Fifth Preference, EB-5: Investors
The EB-5 program allows foreign investors to apply for permanent residence status if they make an investment in a commercial enterprise in the US.
- The minimum investment must be in the amount of $1,050,000 or $800,000 if the investment is in a targeted employment area (a rural area of less than 20,000 population or an area that has experienced high unemployment of at least 150% of the national average).
- The investment must be in a new commercial enterprise. A new commercial enterprise is one formed after November 29, 1990.
- The investment must directly create at least 10 new full time jobs for US workers. The applicant and their immediate family are not considered. Job creation can be indirect if the investment is through a regional center.
- The investment must be at risk, there cannot be a guarantee that the investor will recover the funds. The only guarantee of return of investment allowed is when the funds are placed in an escrow account with instructions to return to investor if the visa is denied and to transfer to the company if the visa is approved.
- The investor must be the legal owner of the funds invested & must show that the funds were legally obtained.
- The investor must come to engage in the day-to-day business operation or in policy formation.
The investor will receive conditional permanent residence status for a 2 year period and must request to remove the conditions within 90 days before the 2nd year anniversary. During the removal of conditions process, USCIS will look at the status of the investment.
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