Employee Creation/Investors Visa 

The main purpose behind the new Employment Creation Investors Visa, is to create new jobs for U.S workers and to infuse new capital to the U.S. economy. The current Investors Immigrant Category can be found in it's own preference catagory, "EB-5". The Investors Category however, is limited to 10,000 visas annually. To qualify, the investing alien must have "established" and "engaged" in a "new commercial enterprise." The alien must have invested (after November 29, 1990) or be in the process of investing no less than a certain sum (usually $1,000,000). The investment must benefit the U.S. economy and create full time employment of at least ten (10) U.S. citizens or Employment Authorized Immigrants (excluding the principal alien, spouse, sons and daughters). 

The United States requires the investing alien to be entering the U.S. to engage in a new commercial enterprise which he or she has established. The alien must exercise day to day control or formulate policy. A passive roll will be insufficient. 

The word "new" indicates that the investment should be in a new company and not utilize the existing assets of a existing enterprise. The regulations do permit the investment in an existing enterprise provided that the investment causes increase in the net-worth or number of the employees, or both, by at least 140%. 

It is also required that it be an individual business. What this means is that two businesses in the amount of $500,000 each would not meet the requirements for the Investor Immigrant Visa. However, two individuals could pool $1,000,000 each into one investment (creating at least 20 jobs) and this would qualify both for immigrant status. 

Also according to the Immigration & Naturalization Service's regulations, one must actively be in the process of investing. However, if the alien is purchasing an existing enterprise the statutory amount of ($1,000,000) has to be transferred before the approval of any immigrant visa petition. 

Of course, under the Investor Visa Category the commercial enterprise has to be of benefit to the U.S. economy. At this time there is some ambiguity as to what is a benefit to the U.S. economy. It is safe to assume that employing U.S. Citizens and Employment Authorized Aliens and the influx of capital into the U.S. constitutes a "benefit" to the U.S. economy. 

All foreign nationals investing in the United States for the purpose of obtaining immigrant status, need at least ten (10) U.S. Citizens or Employment Authorized Aliens must be utilized. Immigration and Naturalization Services Regulations specified 35 to 40 hours per week as full time employment. 

The Immigration and Naturalization Services regulations set an amount of $1,000,000 as the minimum investment. However, a major goal of the Immigration Act of 1990, with regards to the Immigrant Investor, is to attract foreign investment (into targeted employment areas). The targeted employment areas are defined as a rural area or an area which has experience hiring employment of at least one and a half times below the national average. Or, it is further defined as any area other than an area within a standard, or within the outer boundary, of any city or town having a population of 20,000 or more based on most recent decennial census. The amount needed to invest in these areas is $500,000, unless the Attorney General later raises the basic amount. As an additional incentive, 3,000 of the 10,000 visas are reserved solely for qualifying aliens investing in targeted employment areas. 

Another important aspect of the Immigrant Investor Visa is the Immigrant Investor is only granted 2 years conditional permanent resident status. What this means is within a 90 day period prior to the second anniversary of obtaining lawful permanent residence, the investor has to petition, under penalty of perjury, to remove the conditional status. The petition must contain facts and information demonstrating that:

1. A commercial enterprise was established by the alien;
2. The alien investor was actively in the process of investing the requisite capital;
3. The alien has "sustained the actions" described in the regulations throughout the alien's residence in the U.S.

The Immigrant Investor Visa category is an exciting and new way to obtain permanent residency in the United States of America. It not only benefits the United States of America, it benefits the investor inasmuch as the alien is guaranteed a stable and enjoyable economy and society in which to make their investment and home.