USCIS Issues Guidance Memorandum on EB-5 Immigrant Investor Program

Posted on June 19th, 2009, by James Livesay in Immigration Law. Comments Off on USCIS Issues Guidance Memorandum on EB-5 Immigrant Investor Program

U.S. Citizenship and Immigration Services (USCIS) has issued a guidance memorandum that provides USCIS adjudication officers with instructions related to the timing of job creation and the meaning of “full-time” positions in the EB5 Immigrant Investor Program.

Entering the U.S. on the basis of an investment (as opposed to a family or employment-based petition) can either take the form of a nonimmigrant (temporary) visa or an immigrant visa, which results in the Permanent Resident “Green Card.” The Permanent Residency route for an investor is known as the EB5 Investor Category. This category was created by Congress to allow foreign investors and their immediate family members to obtain permanent residency in the U.S. in exchange for investing in an employment-creation commercial enterprise.

In order to qualify for EB5 Immigration, the foreign investor must: 1) create a new business, 2) expand an existing business, or 3) purchase an existing business and reorganize it so that a new commercial enterprise results. Because it is an “employment-creation” method of obtaining residency, the investment business must also be able employ at least 10 full-time U.S. workers. The workers must have authorization to legally work in the U.S.

The guidance memorandum update to the Adjudicator’s Field Manual (AFM) clarifies that for purposes of the Immigrant Petition by Alien Entrepreneur (Form I-526) adjudication and the job creation requirements, USCIS will consider the two-year period to begin six months after the adjudication of the Form I-526.

USCIS officers will ensure that the business plan filed with the Form I-526 reasonably demonstrates that the requisite number of jobs will be created by the end of the two-year period. For Regional Center petitions and for purposes of indirect job creation, USCIS adjudicators may consider economic models that rely on certain variables to show job creation and the amount of investment to determine whether the required infusion of capital or creation of direct jobs will result in a certain number of indirect jobs.

USCIS also has concluded that certain direct and indirect jobs that would have previously been considered to be temporary or intermittent (such as construction jobs) may be considered as permanent jobs for Form I-526 and the Petition by Entrepreneur to Remove Conditions (Form I-829) purposes if the positions can be expected to last at least 2 years.

If you or a loved one require assistance in applying for an EB5 or other employment-based green card, please contact us to schedule your initial consultation with an experienced Virginia immigration lawyer today. Our immigration attorneys represent clients in Manassas, Woodbridge, Stafford, Alexandria, Arlington, Fredericksburg, Falls Church, Fairfax and all of Northern Virginia, as well as throughout Maryland and the District of Columbia.

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Attorney James Livesay is a Partner at Livesay & Myers. After graduating from the University of Virginia School of Law in 1998, he began his legal career in the Navy JAG Corps, before entering private practice as a Virginia family lawyer in 2001. Along with partner Kevin Myers, Mr. Livesay founded Livesay & Myers in 2003. Today he advises the attorneys in each of the firm’s four offices.

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