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Investor/Job Creation (EB-5) The fifth preference employment-based immigrant category allocates 7.1 percent of available visas to non-US persons who commit to establishing new commercial enterprises in the US with an investment of $1 million or more and a commitment to creating at least ten full time jobs. The investment level can be reduced to $500,000 if the new business is located in a rural area or in a region deemed by a state government to be suffering from unemployment rates which are at least 150% higher than the national average. The investment may also be made in reorganizing a failing business (i.e., one that has lost 20% or more of its asset value in the most recent 24 months) provided that the company maintain employment at pre-investment levels for at least two years. Expanding an existing business would also qualify, provided that the investment increases by 40% either the capitalization of the enterprise or the number of employees. Significantly, permanent residence status is first granted on a conditional basis for two years, subject to the individual's demonstration that he has made the requisite investment and otherwise followed through on his representations. The individual must petition for removal of the condition within 90 days of the second anniversary of grant of status. The fifth preference petition is filed by the investor himself and needs no third party sponsor. The petitioner must, however, provide substantial evidence demonstrating the nature, scope and purpose of the investments.
The petitioner must establish that he has placed the minimum level of capital at risk in the business. This requires more than a mere intent to invest, or the existence of a highly conditioned commitment (although the investment may be conditioned on grant of the visa itself.) Evidence of investment may include:
If the new business has already hired employees, the petition should provide evidence of the hires. Otherwise, the petition must provide a comprehensive business plan demonstrating the need for ten or more full time employees within the succeeding two years and the schedule on which these employees will be hired. If the investment is to be made in a qualifying business reorganization ("troubled business") the petitioner must demonstrate that existing employment levels will be maintained for at least two years.
The fifth preference requires the investor's active participation in the management of the enterprise, either through day-to-day managerial control or through policy formulation. This could be shown by evidence of, for example, a senior management position, membership in the company's board of directors, or managing/general partner status.
The burden is on the investor to petition for removal of conditional status within 90 days of the two year anniversary of the grant of fifth preference immigrant visa, and failure to do so can result in removal proceedings. The petition must include evidence that:
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