GREENCARD THROUGH INVESTMENT
If you make a large investment in the United States, you may be able to obtain a green card. You can either invest $1 million in a business located anywhere in the U.S., or invest $500,000 in an area of high unemployment or a rural area. With a $500,000 investment in an area of high unemployment, such as the Bronx or Brooklyn in New York State, and by hiring at least ten full-time U.S. workers, you may apply for an investment-based green card.
You must have acquired the capital by lawful means. You must contribute capital in the form of equity or long-term debt financing. If you are acting only as a creditor to the business, you will not qualify for an immigrant visa.
Capital includes cash, cash equivalents, equipment, inventory, other tangible property, and indebtedness secured by assets owned by you (provided that you are directly and personally liable, and the investment enterprise is not used to secure the debt.
U.S. workers include U.S. citizens, lawful permanent residents, and asylees. Hiring workers with temporary visas does not satisfy the requirement of providing at least ten jobs for U.S. workers. For example, if you have nine U.S. citizen employees and one H-1B employee, the requirement is not satisfied.
Additionally, you cannot combine part-time positions to equal a full-time position to fulfill the requirement. Therefore, hiring 20 part-time workers will not satisfy the requirement of providing 10 full-time jobs.
Initially, you and your family will only receive conditional residence. You must re-petition after two years to become a permanent resident. Thus you must maintain your investment in the business for at least two years. You must be involved in the management of the business either through day-to-day managerial control or policy-making.
RECENT CHANGES IN ENTREPRENEUR REQUIREMENTS
Through the alien entrepreneur program, an alien can obtain a greencard by investing $1 million (or $500,000 in an area of high unemployment) in creating a new business, and hiring ten full-time U.S. workers. Prior law required the investor to have “established” the commercial enterprise. The Immigration Service interpreted this requirement very narrowly, stating that the investor must have been present at the inception of the business. INS (now called USCIS) used this requirement to deny many cases, for example, on the grounds that the alien applicant was not the person who signed and filed the business’ incorporation papers filed with the state.
As an alternative to creating an original business, an investor could also qualify if he or she either
1) purchased an existing business and restructured or reorganized the business so that a new commercial enterprise resulted, or
2) the investor expanded an existing business and caused a 40 percent increase in its net worth or employment levels.
The Immigration Service also interpreted these requirements strictly, requiring audited financial statements regarding the company’s former net worth just before the business was purchased. Most investors will not have obtained the audited financial statements of the company they purchased, and so would not be able to meet this requirement.
Because of the difficulty in meeting the requirements, not many have applied for immigration through the immigrant investor program since its inception in 1990, and fewer have actually obtained their greencards through the program. As part of the 21st Century Department of Justice Appropriations Authorization Act, November 2, 2002, Congress eliminated the enterprise establishment requirement for alien entrepreneurs. The amendment allows alien investors to invest in companies that are past the start-up phase and have already established themselves. However, the business should have been established after November 29, 1990.
CHANGE IN ALIEN ENTREPRENEUR REQUIREMENTS
Prior law required the investor to have “established” the commercial enterprise. The Immigration Service interpreted this requirement very narrowly, stating that the investor must have been present at the inception of the business. INS (now called USCIS) used this requirement to deny many cases, for example, on the grounds that the alien applicant was not the person who signed and filed the business’ incorporation papers filed with the state.
As an alternative to creating an original business, an investor could also qualify if he or she either 1) purchased an existing business and restructured or reorganized the business so that a new commercial enterprise resulted, or 2) the investor expanded an existing business and caused a 40 percent increase in its net worth or employment levels. The Immigration Service also interpreted these requirements strictly, requiring audited financial statements regarding the company’s former net worth just before the business was purchased. Most investors will not have obtained the audited financial statements of the company they purchased, and so would not be able to meet this requirement.
Because of the difficulty in meeting the requirements, not many have applied for immigration through the immigrant investor program since its inception in 1990, and fewer have actually obtained their greencards through the program..
As part of the 21st Century Department of Justice Appropriations Authorization Act, November 2, 2002, Congress eliminated the enterprise establishment requirement for alien entrepreneurs. The amendment allows alien investors to invest in companies that are past the start-up phase and have already established themselves. However, the business should have been established after November 29, 1990.
E-2 Treaty Investors and E-1 Treaty Traders
Alternatively, if you have less than $500,000, but still enough money to purchase an existing U.S. business or to start-up a new business in the United States, you may be eligible for a temporary investor’s visa. It can be a small business, such as a grocery store or a gas station. You will have to show that you have committed your money to the business, and the business will be able to support U.S. workers, as well as you and your family. To obtain the temporary visa, there must be a treaty between the United States and your country of citizenship, which provides for the investor’s visas.
How do you qualify as an E-2 treaty investor? First, your country of nationality must have a treaty with the United States providing for treaty investor status. Second, you must be coming to the U.S. solely to develop and direct the operations of the business in which you have invested, or are actively in the process of investing. Additionally, key employees from the treaty country who are essential to the operation of the business may also obtain E-2 status. Third, the business does not have to be a specific type or size to qualify. You may start a business in any field, even with a small amount of capital as long as you are investing the total value of the business. However, the investment may not be a passive investment, such as the purchase of real estate or stocks. Fourth, the business cannot just generate an income for you and your family; you must hire at least one full-time U.S. worker.
Alternatively, a businessperson may obtain E-1 status as a Treaty Trader. In order to qualify, first, there must be a treaty providing for Treaty Trader status between the U.S. and your country of nationality. Second, you must be coming to the U.S. solely to carry on substantial trade which is international in scope principally between the U.S. and your home country. Additionally, key employees from your home country, including executive, supervisors and others who provide essential services for the company, may qualify for E-1 status.
What is trade? Trade includes, but is not limited to, goods, services, international banking, insurance, transportation, communications, data processing advertising, accounting, design and engineering, management consulting, tourism, technology and its transfer, and some news-gathering activities.
What does it mean that the company has to trade principally between the U.S. and your home country? More than 50% of the total volume of your company’s international trade must be between the U.S. and your home country.
What is substantial trade? There must be a continuous flow of international trade, and the application cannot be based upon a single transaction, no matter how high the value. The volume of exchanges is more important that the value of the trade. Income generated from numerous transactions which is enough to support the trader and his or her family is a favorable factor in determining whether substantial trade exists.
A treaty trader or treaty investor can also obtain visas for his or her spouse and children. Additionally, the spouses of E visa-holders may apply for work authorization. E status is temporary, but indefinitely renewable, as long as the business is doing well.