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EB-5 Law & Related U.S. Law
FAQs on EB-5 law and related immigration law
[Q] If Principal Applicant loses CPR status for some reason, what happens to dependents' conditional PR status?
Dependents would also lose their conditional PR status also. Until the Principal Applicant obtains permanent green card status, dependents' status depends on PA's status.
[Q] Will changing 12 existing part-time positions into 10+ full-time positions count as requisite job-creation?
[Q] If an alien investor makes requisite investment into a business and turns 12 part-time positions into 12 full-time positions, will this count as more than 10 full-time jobs?
Interesting question. We think (we are not sure as CSC has not answered this one) that CSC would say "no", because they apparently consider the jobs to be "new", and they would argue that these were existing part-time positions which got "upgraded" to full-time positions and therefore, they are not "new" jobs.
[Q] Can I form a "new" commercial enterprise by creating a new corporation to purchase an old, existing biz?
[Q] Potential EB-5 investor client is going to establish a new (2010) corporation. His new corporation plans to purchase a nursing home, which has been in business since the 1970s. Based upon my reading of the relevant case law (Matter of Soffici), it is the age of the nursing home operation in question that is controlling, and not the fact that this new corporation was formed in 2010. It appears that USCIS could argue that this will not be a "new" commercial enterprise because the nursing home was in operation prior to 1990.
We believe that USCIS will rule that this is not the "new" commercial enterprise. We believe there was AAO case law on this. Also, common sense would dictate this conclusion. Therefore, unless there is a requisite "expansion" or "restructuring", no "new" commercial enterprise has been established.
[Q] Can a direct individual EB-5 case's new commercial enterprise make loans to businesses and create jobs?
[Q] EB-5 Investors (each with $1 million or more to invest)want to invest with me to form a new direct EB-5 investment company whose business will be to make direct loans to other businesses that will have job creation enough to reach 10 new jobs per investor. Can this new business loan company be structured as a direct investment for the EB-5 Investors?
No, you cannot, because direct, individual EB-5 cases require jobs to be created directly. Jobs that are created by making loans to job-creating business(es) are all indirect and/or induced jobs.
[Q] Can several affiliates owned by one person be restructured to go under one holding company to qualify for EB-5 case?
[Q] Imagine a situation where a current E-2 investor has 3 companies in which he has invested approximately $400K in each (total $1.2 million investment). He is the 100% owner of all 3 companies. One of the companies owns the job-creating business, let's say a car wash, which already created 10 full-time positions. The other 2 companies own real estate leased to the business. The investments were made several years ago.
To try to qualify for EB-5 case, can the investor form a holding company in which he would be 100% owner, and then transfer all of his shares in each of the 3 separate companies to the holding company? In this way, there would be one holding company and the 3 corporations would be wholly-owned subsidiaries of the holding company. Would this structure comply with the definition of commercial enterprise at 8 CFR 204.6 and, as a result, allow all investments in the 3 separate companies to be pooled for purposes of showing $1m investment?
This is an interesting question and happens more often that one thinks.
[Q] Can a job-creating entity be a non-profit organization?
In a direct EB-5 case, the answer is "no", because the underlying new commercial enterprise must create jobs directly, and only for-profit entities can be new commercial enterprises.
[Q] Would a loan backed by future cash flows qualify as proper EB-5 investment?
{Q} Would a loan backed by future cash flows qualify? Can an EB-5 investor argue that the loan is collateralized by his business which generates the future income? Basically, does this loan qualify as "capital"?
In our opinion, USCIS will have some issue with this arrangement, because basically this loan is given on the borrower's good credit or name. It's like Bill Gates going to any bank and getting a loan purely based on his perceived ability to make money. What is a loan collateralized by personal asset is sometimes a grey area, because one could argue that one's good name is personal asset also.
[Q] What does "make available" money to job-creating entity phrase mean?
[Q] USCIS requires that the EB-5 petitioner, a holding company that owns a restaurant 100% (the job creating entity), show that it has made the full amount of money available to the restaurant, per Izumii. Izumii does not define what "make available" actually means. Are there cases or memos that define what it means for a holding company to "make available" the full amount of money to its wholly owned job-creating entity?
There is no other case or memo, although it is true that the full amount of money must be made available to the entity most closely related to the job-creation.
[HOT] [Q] Can I use a gift received from a friend to do EB-5 case?
You must have a nice friend. :) The EB-5 regulations state that the capital must have been obtained "through lawful means." 8 CFR 204.6(j)(3). Therefore, the emphasis of proof should be on showing that the giver of this gift made money "lawfully", rather than showing that the gift tax was paid.
[Q] Can an EB-5 investor apply for EB-5 case where investment and job-creation took place let's say 4 or 5 years ago?
[Q] Can an I-526 be filed and approved based on the requisite investment and 10+ job-creation in or by a new commercial enterprise where both the investment and the job creation took place 4 or 5 years in the past, without having to create additional jobs after the I-526 petition is approved? Also, if the answer is "Yes", do the previously created 10+ jobs have to be maintained during the conditional resident period for the I-829 to be approved?
USCIS Answer: Yes, the jobs created a number of years ago still count, and yes they must be maintained during the conditional resident period.
