By: Emily Pierce, Associate Attorney at Maged Rost
Almost 25 years ago, Congress established the fifth employment-based visa category, commonly referred to as EB-5. This immigrant visa category allowsforeign nationals to obtain green cards through an investment in a new commercial enterprise that benefits the U.S. economy and creates at least 10full-time jobs for U.S. workers.1 While direct investment is a wise choice for some foreign nationals, it can be difficult for an individual to obtain sufficient evidence to satisfy the complex EB-5 statute.
Congress soon recognized the heavy burden that the statute and regulations placed on immigrant investors. In response to the problem, Congress established a temporary pilot program in 1993 that permitted investments through “regional centers.”2 The pilot program remains authorized today, and it reduces pressure on investors in two significant ways.
First, the pilot program allows private and governmental agencies to be certified as regional centers.3 This is helpful to investors because the regional center assumes responsibility for most of the burdensome documentcollection, recordkeeping, and economic reports that a foreign national may not be interested in managing. Additionally, regional centers provide a way for multiple investors unknown to one another to contribute to the same enterprise, allowing for more expansive projects and potentially greater job creation.
Second, the pilot program modified the original job creation requirement. Now, an investor may be able to qualify for a green card upon evidence that jobs will be created either directly or indirectly.4
“Direct jobs” are those that establish an employer-employee relationship between the commercial enterprise and the people it employs. When a foreign national engages in a direct investment, only the creation of direct jobs will satisfy the 10-job rule. In contrast, “indirect jobs” are those held by people who work outside the enterprise, including producers of materials, equipment, and services used in the business. “Induced jobs” are a sub-category of indirect jobs, and these also count toward the employment creation requirement. Induced jobs are those created when direct and indirect employees spend their new or increased incomes on consumer goodsand services.5
Each foreign national interested in obtaining a green card through a capital investment must decide whether to invest directly or through a regional center. The decision is extremely important, and should be made only after careful consideration and consultation with experienced immigration and business attorneys.
1 8 USC § 1153(b)(5), INA § 203(b)(5).
2 Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriates Act of 1993, Pub. L. No. 102-395, § 610 (1992).
3 8 C.F.R. § 204.6(m)(3).
4 8 C.F.R. § 204.6(m)(7).
5 Memo, Neufeld, Acting Assoc. Director, Domestic Operations, USCIS, HQ 70/6.2, AD 09-38 (Dec. 11, 2009).