Foreign inventors may qualify for an EB-5 Visa if they expand business operations to the US and create jobs

Inventors and foreign companies with patent technology may wish to manufacture or sell in the US. For some, this is a path to a visa, especially for persons from countries that typically have lengthy waits to get permission to live and work in the US (China, India, Mexico and the Philipines).  In order to build a corporate presence in the US, a company may be able to take advantage of the Fifth Preference (EB-5) employment creation visa category. This visa provides conditional residency to foreign nationals who invest $1,000,000 (or $500,000 in targeted employment and rural areas) in a new commercial enterprise that creates full-time employment for 10 United States citizens or authorized immigrant workers (such as H1B employees), provided that the visa holder engages in the day-to-day management of the business.

In order to successfully receive an EB-5 visa, the applicant should gather the following supporting documentation for the visa application:

The enterprise

The applicant must invest in a “new commercial enterprise,” (for example, most for-profit business entity structures will meet the standard, including limited liability companies, corporations,  limited partnerships, holding companies and their wholly-owned subsidiaries). To qualify as new, the entity should be formed after 1991. The applicant will need a copy of the entity’s Articles of Incorporation (or comparable business formation document) as well as minutes or other substantiation of authorization to do business in the US and that s/he is corporate officer and director; or in the case of a partnership, the partners’ management or policy-making activities consistent with rights, powers and duties normally granted limited partners under the ULP Act.

Investment documents

The investment can be in cash, equipment, inventory, other tangible property, cash equivalents, or an indebtedness secured by assets owned by the entrepreneur, provided that the entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise are not used to secure any of the indebtedness. A loan to the commercial enterprise or any other debt arrangement between the entrepreneur and the new commercial enterprise does not constitute an investment.  The investment must be at-risk (subject to loss) depending on the success of the business endeavor.

The applicant must provide evidence of the investment, which may include bank statements, evidence of purchased assets, evidence of property transferred from abroad, stock certificates given for investment; or loan or mortgage agreements. To demonstrate the $1,000,000 investment, all capital is valued in U.S. dollars and at fair market value.

The applicant must establish that the investment comes from accounts under his name or from funds in joint accounts by the applicant and his/her spouse. The joint accounts cannot be with other family members (siblings, parents or children).

The applicant must provide evidence of the source of funds and that they are legitimate.

Lawful source of funds

To demonstrate that the funds are legitimate, applicant will be required to provide foreign business registration records; corporate, partnership and, personal tax returns filed for the preceeding five years; and evidence identifying other sources of capital. Where the source is sale of house or business, the applicant investor needs to provide copies of sales contracts, closing documents and/or or deeds. If the investment was from savings, the applicant will need to provide evidence of his level of income during the preceeding years (usually 5-10 years). The applicant will need to provide certified copies of any judgments or evidence of all pending governmental, civil or criminal actions, administrative actions, and any private civil actions involving monetary judgments within the past 15 years.

Job creation of 10 jobs and Targeted Employment Area (TEA)

The applicant will need to provide I-9s (if working in the US), tax records and substantiation that this is a full-time business endeavor (not a part-time hobby). He will also need to submit a comprehensive business plan demonstrating where the 10 employees will be hired, the nature of the work they will perform and giving approximate dates within the next two years.

If the employment will be in a TEA, the applicant must provide evidence of the statistical area (or MSA) and a letter from an appropriate state agency that the area has high unemployment.

Petitioner will be engaging in business on a day-to-day basis or through policy formation

Lastly, the applicant must provide documentation of his title (and evidence that s/he is a corporate officer and director (or partner) and a description of job duties. These duties should be consistent with those of similarly situated executives in similar businesses.

The success of EB-5 visa applications is strongly related to the strength of the application package. If you would like to discuss this or other employment -related visa options, Tracy Jong Law Firm would be pleased to explore your options and guide you through the process.

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