The 5th employment-based preference category includes investor visas, which are available to foreign nationals that have invested, or are in the process of investing, a significant amount of capital in a new U.S. commercial enterprise. Also known as the employment-creation visa, the investor visa is intended to help create new jobs in the U.S. through the formation of new, or the expansion of existing, businesses. Foreign nationals that meet the requirements for the investor visa are also eligible for an employment-based green card.
Applications for an investor visa are filed on Form I-526 Immigrant Petition by Alien Entrepreneur. The foreign national investor must apply on their own behalf, and the petition must be supported by evidence which establishes the following:
- The foreign national has invested, or is in the process of investing, in a new or struggling U.S. commercial enterprise;
- The commercial enterprise will create or preserve at least 10 full-time positions for U.S. workers; and
- The foreign national’s investment is minimally valued at $1,000,000 or $500,000 if the investment is made in a “targeted” area (rural areas or places with particularly high rates of unemployment).
Capital is not strictly defined as money. It also includes equipment, inventory, tangible property, cash equivalents and indebtedness secured by assets owned solely by the foreign investor. The value of the investment is calculated in U.S. dollars based on the fair market value of the cash and/or assets contributed. To qualify as a legitimate investment, the capital can’t be prospectively invested, meaning it must be placed at commercial risk with the purpose of generating capital.
New Commercial Enterprise
The establishment of a new commercial enterprise includes not only the creation of an original business, but also the following:
- Purchasing an existing business and restructuring or reorganizing it so a new commercial enterprise emerges; or
- Expanding an existing business so there is a substantial change in the net worth or number of employees.
A “substantial change” is defined as a 40% increase in the business’ net worth or in the number of employees. If an existing business receiving investment capital is troubled, the foreign investor may satisfy the employment creation requirements by proving the number of employees will meet or exceed the pre-investment level for at least 2 years.
Investor Green Card
Foreign investors are eligible for permanent residence or a green card. Approximately 10,000 immigrant visas are available annually for foreign investors with an approved I-526 Immigrant Petition By Alien Entrepreneur. Initially, a conditional green card, which is not eligible for renewal, will be issued for 2 years. Three months before the conditional green card expires, the foreign investor must apply for a permanent green card. To have the conditions of the green card removed, the USCIS will require verification of the foreign national’s continued qualifying investment. Once the qualifying investment has been verified, the USCIS will lift the conditional status and issue a permanent green card to the investor.
More than one foreign investor may use the same new enterprise as the basis for an investor visa, provided each meets the requirements for the visa. Each investor, individually, must commit the required amount of capital and ensure their investment creates or preserves at least 10 full-time jobs for U.S. workers.