E-Alerts

USCIS Establishing New Office To Oversee Immigrant Investor Program

[August 10, 2012]  U.S. Citizenship and Immigration Services (“USCIS”) is establishing a new office to oversee administration of the EB-5 Immigrant Investor Program (the “EB-5 Program”).  The EB-5 Program allows foreign nationals to obtain permanent residence (i.e., a green card) in exchange for investing in U.S. industry, provided that certain investment, employment, and management criteria are satisfied, as set forth below.

The EB-5 Program has been credited with creating tens of thousands of jobs and injecting billions of dollars into the economy since its creation in 1990.  The dedicated program office that USCIS is establishing will consist of attorneys and expert economists, managed under a single leadership structure.  Through this step, USCIS hopes to enhance efficiency and predictability in administration of the EB-5 Program.

Participation In The EB-5 Program

To qualify for participation in the EB-5 Program, a foreign national must satisfy one of three basic criteria:

 

• Invest at least $1 million in a new commercial enterprise that will employ at least ten U.S. workers, and be actively engaged in the management of the business;

• Invest at least $500,000 in a new commercial enterprise located in a rural area or area of high unemployment that will employ at least ten U.S. workers, and be actively engaged in the management of the business; or

• Invest at least $1 million in an established regional center, or at least $500,000 in a regional center located in a rural area or area of high unemployment, as defined under the EB-5 pilot program.  (However, it should be noted that the pilot program is currently due to expire on September 30, 2012.)

Applicants are also subject to various complex participation requirements, which interested employers should discuss with counsel.

It should be noted that “new” commercial enterprises eligible for investments under the EB-5 Program include businesses formed after November 29, 1990, as well as businesses formed before that date that have undergone significant restructuring or expansion.  Therefore, existing enterprises may qualify to receive investments from foreign nationals under the EB-5 Program.  Qualified employers also may be able to benefit by applying to USCIS for regional center designation under the pilot program.

Recommendations For Employers

Employers interested in participating in the EB-5 Program should consider taking the following steps:

 

• If interested in attracting foreign investors under the EB-5 Program, prepare a comprehensive business plan demonstrating how the required ten-employee threshold will be satisfied;

• Ensure that any application for regional center designation under the pilot program is submitted by the current “sunset” date of September 30, 2012; and

• If interested in exploring the pilot program further, urge Congressional representatives to extend it beyond the September 30, 2012, sunset date.

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Please contact us if you have any questions regarding the EB-5 Program or any other aspect of immigration law.  The Firm regularly assists employers with preparing and processing employment-based non-immigrant and immigrant visa applications, and would welcome the opportunity to assist you.