The US EB-5 visa program was introduced to help boost investment and job creation in the United States through issue of permanent residence to individuals investing between $500,000 and $1 million in commercial enterprises in the USA. While the program rules are the same for all investors, applicants must consider important practices to avoid complications in the application process.
Avoid B-2 Visa Rule Violations
Violation of immigration laws before or following submission of the I-526 petition, seeking grant of conditional permanent residence, can lead to unnecessary complications for applicants. Meeting EB-5 program requirements alone is not sufficient and applicants may find their application for permanent residence rejected due to non compliance with a range of immigration rules.
Investment immigration applicants should be careful when applying for the tourist visa—B-2 visa—that grants the right to temporary stay in the USA. Those planning to visit the USA for medical treatment, vacation, social events, or for visiting friends and relatives are issued this visa, which has a maximum validity of ten years. The holder of this visa can normally visit the country for up to 90 days at a time.
The B-2 visa is a non-immigrant visa i.e. the holder must declare that he or she
- does not wish to abandon foreign residence and stay in the USA permanently, and
- Retains ties with the foreign residence, and
- Owns adequate funds to visit the USA and depart at the end of the permitted period of stay.
An EB-5 applicant who travels in and out of the USA at regular intervals or stays the entire duration of permitted stay under the B-2 visa and returns within a few weeks may be found in violation of the above-mentioned conditions. Authorities may infer intent to establish residence in the country from frequent visits. Ownership of assets in the USA may further reinforce an unfavourable conclusion regarding the visitor’s intent.
Having such a violation on record can impair the individual’s chances of qualifying for I-526 approval under the EB-5 program. Frequent, extended travels to the US must be carried out with careful planning to ensure compliance with immigration rules.
Consider Forex Restrictions
Visitors to the United States must ensure compliance with a range of foreign currency related rules which regulate the transfer of currency out of a particular country and into the United States. Applicants intending to participate in the EB-5 program requiring an investment of $500,000 or $1 million—into the USA must ensure compliance with foreign currency rules. If large transfers of currency are prohibited by a foreign jurisdiction or permitted only by installments, then this can affect an applicant qualifying for the US investment immigration EB-5 program.
Access to Banking Services
According to the World Bank Global Financial Inclusion Index, only 39 out of every 100 citizen of Central and Latin American nations aged above 15 years have their own bank accounts. Brazil, the largest and one of the most advanced nation in South America, ranks 68% in this Index.
While affluent individuals seeking the US green card through investments may have bank accounts, this low figure may make it difficult to establish for a large number of potential applicants to demonstrate a historical provenance of their assets. Since a large number of individuals transact in cash, proving the legitimacy of the source of funds to be invested in the USA may prove to be a very tough task for many.
The I-526 petition mandates clear and detailed review of the source of funds. Hence, the planning process for the EB-5 visa must begin with establishing all requisite documentary evidence related to source of funds through formal banking records.
Combining E-2 Investments with the EB-5 Program
The E-2 visa is issued on the basis of reciprocal treaties established by the USA with other nations primarily for the purpose of promoting trade. E-2 visa holders can work and reside in the USA by making a substantial investment in a commercial enterprise in the country with the intention to develop and direct the enterprise.
The E-2 visa is a non-immigration visa, which means the holders of this visa cannot simultaneously apply for an EB-5 visa. The former is issued on the precondition that the investor should not intend to settle in the USA. However, E-2 visa holders can leave the USA and then apply for the EB-5 visa on the basis of the E-2 investments.
While E-2 visa merely requires substantial investments into a commercial enterprise, one can invest the minimum amount required by the EB-5 visa to qualify for the same. Naturally, the business must also fulfill the job-creation requirement. To qualify for an EB-5 visa, the applicant must make the investment out of his or her personal funds. Thus funds belonging to the enterprise receiving the E-2 visa investment and retained earnings of such an enterprise shall not be considered as eligible investments for the purpose of permanent residence under the EB-5 program.
If pursued correctly the holder of an E-2 visa, which is processed in just 1-2 weeks as opposed to the 12-14 month processing period for the EB-5 visa, can be strategically used as a preliminary step towards gaining permanent residence in the USA under EB-5.
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