Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

What evidence do you need for the EB-5 Visa?

Question: I have the $1,000,000 to invest in the EBp-5 Visa, but I don’t know exactly what evidence is needed. Can you describe?

Answer:  There are many requirements needed to show and provide evidence.

Question: What about the actual business or the commercial enterprise?

Answer: First, you have to show that it is a valid commercial enterprise. To qualify for EB-5 classification, an investor must show that an investment has been made in a qualified commercial enterprise. The applicant should include:  An organizational document for the new enterprise, including articles of incorporation, certificates of merger and consolidation, or partnership agreements; A business license or authorization to transact business in a state or city, if applicable; and for investments in an existing business, proof that the required amount of capital was transferred to the business after November 29, 1990, and that the investment has increased the net worth or number of employees by 40 percent or more.

Question: What about the capitalization or investment?

Answer: You must show different items regarding the actual investment itself. The EB-5 Petition must be accompanied by evidence that you have placed the required amount of capital “at risk.” A mere intention to invest will not demonstrate that the petitioner is actively in the process of investing. The investor must show actual commitment of the required amount of capital. Such evidence may include: Bank statements showing deposits in the U.S. account of the enterprise; Evidence of assets purchased for use in the enterprise;  Evidence of property transferred from abroad; Evidence of funds invested in the enterprise in exchange for stock, except for stock redeemable at the holder’s request; Evidence of debts secured by the investor’s assets and for which the investor is personally and primarily liable.

Simply putting the $1,000,000 into an account will not suffice.

Question: Is there anything else I must show with the funds invested?

Answer: You must show the  legal origins of the capital. The regulations require filing the following types of documentation, as applicable, to establish that capital used in the new enterprise was acquired by legitimate means. Foreign business registration records; Personal and business tax returns, or other tax returns of any kind filed anywhere in the world within the previous five years;  Documents identifying any other source of money; or  Certified copies of all pending governmental civil or criminal actions and proceedings, or any private civil actions involving money judgments against the investor within the past 15 years.

Question: What about the employment creation requirement?

Answer: To show that a new commercial enterprise will create at least 10 full-time positions for qualified employees, the petition must be accompanied by: Photocopies of relevant tax records, I-9 forms, or similar documents for 10 qualifying employees; or  a comprehensive business plan showing the need for at least 10 qualifying employees, and when the employees will be hired. The plan should include a description of the business; the business’s objectives; a market analysis, including names of competing businesses and their relative strengths and weaknesses; a comparison of the competition’s products and pricing structures; a description of the target market and prospective customers; a description of any manufacturing or production processes, materials required, and supply sources; details of any contracts executed; marketing

Question: How about my abilities to run the company?

Answer:  You must show that you have managerial capacity to run the company. An EB-5 immigrant must be involved in the management of a new commercial enterprise to qualify for a visa. The petitioner must be involved in the day-to-day managerial control of the enterprise, or manage it through policy formulation. Compliance with this requirement may be evidenced by  a comprehensive job description and title for the position occupied by the investor; evidence that the petitioner is a corporate officer or on the board of directors; or evidence that the petitioner is involved in direct management activities or policy-making activities of a general or limited partnership.

There are many strict requirements for the EB-5, so make sure it is done properly prior to investing.

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