EB5 Investment Green Cards- USCIS publishes new memorandum clarifying policies
On May 30, 2013, the United States Citizenship and Immigration Services department (USCIS), in charge of implementing, adjudicating and processing EB5 investment cases, issued a new policy memorandum, setting forth clarifications which will help the program be implemented in a more efficient and predictable manner.
[dropcap3]1[/dropcap3]USCIS in its memo, clarifies the importance of the EB5 program to the US economy and its intent to maintain the program and ensure its success.
[dropcap3]2[/dropcap3]USCIS also clarifies that the adjudication of EB5 petitions and cases should not be made more stringent and difficult by its agents. Rather, it clarifies that the burden of proof on these cases is merely a “preponderance of evidence”, which is much easier to meet than what has been applied in past instances.
[dropcap3]3[/dropcap3]USCIS clarifies that the EB-5 Program is based on three main elements: (1) the immigrant’s investment of capital, (2) in a new commercial enterprise, (3) that creates jobs.
The memo goes on to discuss each element in the context of both the original EB-5 Program and the Immigrant Investor Program.
Some of the most significant points of the memo are as follows:
- The fact that the investor must show ownership of the funds being invested and that they were obtained through legal and legitimate means.
- The investor needs to show the path of the funds to prove that the funds were truly his/hers.
- The regulations also provide that, in order to qualify as an investment in the EB-5 Program, the immigrant investor must actually place his or her capital “at risk” for the purpose of generating a return, and that the mere intent to invest is not sufficient.
- The memo goes on to define what a “new” commercial enterprise is under the EB-5 rules. There is much flexibility in what is considered a “new” enterprise.
- It also clarifies that an investor can invest in an “existing” business, provided that the existing business is restructured or reorganized such that a new commercial enterprise results.
- The memo clarifies that several investors can pool their funds and invest into one new commercial enterprise, provided that “each immigrant investor must invest the required amount of capital and each immigrant investor’s investment must result in the required number of jobs. Furthermore, the new commercial enterprise can have owners who are not seeking to enter the EB-5 Program, provided that the source(s) of all capital invested is (or are) identified and all invested capital has been derived by lawful means.”
- Regional Center programs are also discussed and reviewed.
- The requirement of 10 new jobs per immigrant investor is also reviewed. The fact that jobs must be full time, qualified employees, which is further explained.
Most of the items in the memorandum are established laws and regulations and they are simply being restated for clarification purposes. However, by this memorandum, USCIS, has expressed its commitment to the EB5 program and its intent to make the program work.
Please contact us if you have any questions regarding
the details of the memorandum, about a possible EB-5 investment or
other questions you may have regarding the program.
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