FRSA LEGAL COUNSEL Cotney Construction Law, LLP
EB-5 Investor Green Card Paul Messina, Attorney, Cotney Construction Law, LLP The fifth preference classification for employment-based immigration, more commonly referred to as the EB-5 green card, is an employment-based green card, whereby the immigrant invests a certain amount of money into a business, creates a certain number of jobs and receives a green card to come to the U.S. to manage the business. The EB-5 Program was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. The EB-5 Program has two parts: 1) the permanent Direct EB-5 Program, officially known as the Immigrant Investor Program and 2) the temporary Regional Center EB-5 Program, officially known as the Immigrant Investor Pilot Program, which requires reauthorization from Congress every so often. Although initially an unpopular green card option, over the last several years, the popularity of EB-5 program has grown exponentially, particularly for investments through the Regional Center EB-5 Program. The EB-5 green card has four main requirements, whether it is a direct EB-5 or a regional center EB-5, in order to qualify. They are: ■ Invest the required minimum amount ■ Create a minimum of 10 full-time jobs ■ Establish that the investor is or will be engaged in the management of the new commercial enterprise ■ Invest in a new commercial enterprise.
Investment Amount
The EB-5 Program created two minimum investment amounts. The default investment amount is $1,800,000. If the immigrant is investing what is
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deemed a Targeted Employment Area, the minimum investment amount is $900,000. Beginning October 1, 2025, the investment amounts will be adjusted for inflation every five years. A Targeted Employment Area is defined as an area that, at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 percent of the national average rate. A rural area is any area not within either a metropolitan statistical area (as designated by the Office of Management and Budget) or 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 Targeted Employment Area is determined by United States Citizenship and Immigration Services (USCIS), the same agency that adjudicates EB-5 petitions. The most common form of investment is the investment of cash into the business. Regardless of the type of investment, any investment under the EB-5 program must come from legal sources and the immigrant must be able to document this.
Job Creation
Job creation is essential to the purpose behind the EB-5 Program. For EB-5s, a minimum of 10 full-time jobs must be created by the investment. These jobs must be created in the new commercial enterprise that was invested in. Other indirect jobs are not counted. For example: an investor invests in a new fast food restaurant. The types of jobs that could qualify and count towards the jobs requirement would include manager, assistant manager, cashier, cook, etc. The type of jobs that would not qualify include indirect jobs, such as the architect who worked on the building design, the construction workers who built the building, etc. The only exception to the direct jobs requirement is when the investor invests through a regional center. For those cases, the indirect jobs can be counted in the EB-5 jobs calculation.
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Another requirement for the EB-5 classification is for the investor to engage in the management of the