On Jun 10 2010 by H. Ronald Klasko

Checklist for Prospective Investors and Entrepreneurs under U.S. Immigration Laws

We generally discuss with prospective investors four options available to them under U.S. immigration laws:

  • L-1 (Intracompany transferee),
  • E-2 (Treaty Investor – only available for nationals of certain countries),
  • Individual EB-5, or
  • Regional Center EB-5.

The L-1 and E-2 options, being nonimmigrant visa options, enable the investor to get to the U.S. quicker than the EB-5 options, which are permanent residence options.  The L-1 and E-2 options do allow for permanent residence ultimately, through the multinational manager immigrant process, but only if the investor maintains business operations outside of the U.S. and only after U.S. business operations have been ongoing for at least one year.

The following is a checklist of questions to guide the investor in discussing with immigration counsel the best option to meet the investor’s particular needs:

  • Do you want to start a new business in the U.S.?
    Yes – Individual EB-5 or L-1 (E-2)
    No – RC EB-5
  • Do you intend to keep your overseas business in operation?
    Yes – L-1 (E-2)
    No – Individual or RC EB-5
  • Do you want to buy an existing business?
    Yes – Individual EB-5 or L-1 (E-2)
    No – RC EB-5
  • Do you expect your U.S. business will have at least 10 employees at the time of filing?
    Yes – Individual EB-5
    No – L-1 (E-2) or RC EB-5
  • Do you want to invest at least $500,000 in the U.S.?
    Yes – Individual or RC EB-5
    No – L-1 (E-2)
  • Is your main goal to get a green card or to do business in the U.S.?
    Green Card – RC EB-5
    Do business in the U.S. – L-1 (E-2) or individual EB-5
  • Is finding the quickest way to get to the U.S. the top priority?
    Yes – L-1 (E-2)
    No – individual or RC EB-5
  • Is being able to live in the U.S. your top priority?
    Yes – RC EB-5
    No – L-1 (E-2) or individual EB-5

A detailed chart comparing the four options using different criteria that may be relevant or critical to the individual investor follows:

 
E-2
L-1
Regional Center EB-5
Individual EB-5
Amount of investment
Not quantified, but usually over $100,000 (must be “substantial”)
Any amount
Usually $500,000
$500,000 or $1,000,000
Must Create Jobs?
Can be small
(no exact number)
Can be small
10 direct or indirect jobs
10 direct jobs
Investors’ Employment
Manager or essential skills, unless investor
Manager or Specialized Knowledge
Limited partner or member of LLC Equity; engaged in business
Timing
1-6 months
Can be < 15 business days with premium processing
Average 14 months plus adjustment of status or immigrant visa Average 14 months plus adjustment of status or immigrant visa
Procedure
Can go direct to consul
CIS 1st, unless blanket
CIS, then consul or I-485
CIS, then consul or I-485
Can your spouse work?
Yes
Yes
3 months after I-485 or upon approval of CPR 3 months after I-485 or upon approval of CPR
Permanent Residence
Can file EB-1 after 1 year if qualify as multinational manager
Can be EB-1 after 1 year
File after I-526 approved File after I-526 approved
Can family/investor attend school?
Yes
Yes
In-state tuition sooner
In-state tuition sooner
Employment authorization
Immediate
Immediate
3 months after I-485 or when enter as CPR 3 months after I-485 or when enter as CPR
Can investment be a gift?
Can be problem
Yes
Yes
Yes
Can investment funds be a loan?
Enterprise cannot be collateral
Yes
Enterprise cannot be collateral
Enterprise cannot be collateral
Expedite
Depends on consul or premium process
Premium Process
Rare Rare
Relevance of country
Only national of treaty country
Not relevant
Source and tracing of funds may vary by country Source and tracing of funds may vary by country
Necessity of overseas company
No
Yes
No
No
Buying existing company
OK
OK
No
Must add 10 jobs
Geographical area
Any
Any
Rural/high unemployment area for $500,000 Rural/high unemployment area for $500,000
Prior employment overseas required?
No
Yes, 1 year
No
No
Initial length of visa
Up to 5 years
1 year start-up
2 year conditional permanent residence, then permanent residence 2 year conditional permanent residence, then permanent residence
Maximum period
Unlimited extensions available
5 or 7 years
Permanent
Permanent

 

We look forward to helping to choose the best option for each individual and his/her family.