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GREEN CARD INVESTOR

A Legal Presentation of EB-5 United States Green Card Program


by Daniel Lenghea, United States Business Lawyer

Who Can Apply for the What is the Minimum How many Green Cards can be
obtained from one investment?
EB-5 Program? Investment?
The program is available to those immigrants Generally speaking, the minimum invest- The investor,, the spouse and minor chil-
who have invested, or are in the process of ment required to qualify for EB-5 status is dren under 21 can all receive green cards
investing, funds in a commercial enterprise. $1,000,000 per immigrant investor. based on the investment of the principal.

Ambush Magazine Template 1


SUMMARY

Executive Summary

01 Obtain Green Card 01 Invest At Least $1,000,000


You qualify for Green Card for you, spouse and unmaried You have to bring and invest in the United States at least
childred under the age of 21. One Million Dollars.

Getting 1st Green Card Investment


02 Applying either at consulate or in USA 02 Create at least 10 new Jobs
Once all documents are collected you can apply either in You have to create at least 10 new jobs for United States
the United States or abroad at US Consulate. Citizens or residents.

03 Length of Process 03 Funds have to be legitimate


Based on where you apply, Consulate or in USA your ap- The required $1M has to come from legitimate sources
plication can take from 6 months to 10 months. that can be traced.

04 Conditional Green Card 04 Minimum investment of 2 years


Once your application is approved you and your family You will have to continue your investment for at least 2
members will receive green cards valid for 2 years. years.

2nd Green Card Running the Project


05 After 2 years get your Final Green Card 05 Execute the Project as planned
Your first green card is valid for 2 years. After that you will You have to submit a business plan on your project and
present documentation that project is still runing. you will have to execute the project as requested.

06 Receive Permanent Green Card 06 End the project


If the project is still ongoing you will receive the perma- If you end the project within 2 years you lose green card.
nent Green Card in about 4 months, This is Final. Project can end anytime after receiving Permanent Card.

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THE LAWYER

Lawyer’s Note
L
enghea Law firm represented by Daniel Lenghea is an United
States and Romanian Attorney with right to practice in both
jurisdictions at all levels, including in the European Union. He
is also often requested to assist in international arbitration
proceedings as he is also an International Arbiter at the Romanian
Chamber of Commerce and Industry in Bucharest, with over 15 years
experience in civil, common law, commercial, international contracts
and arbitration.

E
merging With an MBA in International Relations from the pres-
tigious Academy of Economic Studies in Bucharest Romania
where he received a Summa Cum Laude diploma after present-
ing his Master thesis “Risk Assesment of Foreign Direct Invest-
ments”, Daniel Lenghea has guided many foreign investors on the
path of developing entities not only in The United States but around
the globe.

N
early imeediately after moving in the United States Daniel
Lenghea received his Juris Doctorate from University of
Miami School of Law where he has presented his graduation
thesis in Banking Law, respectively the acquisition of Merril
Lynch by Bank of America.

G
oing further, Daniel Lenghea has also attended the most
prestigious university in the United States, Harvard University
where he has attended along with other top ranking lawyers
and law firm managers a joint program between Harvard
Law School and Harvard Business School, specifically the Executive
Program in Law Firm Management, a program, dedicated to promoting
best services at Harvard Law School.

H
aving all this experience, Daniel’s legal practice is dedicated
to assist clients (multinational companies and private inves-
tors) in corporate matters including incorporations, direct
investments, acquisitions, business developments, com-
mercial contracts, trade, protection of patents, trade names, trade-
marks, national and international taxation, mediation, international
arbitration, litigation, business immigration, investor visas, EB5 pilot
program creation, E2 investor visa, L1 multinational executive visa.

E
stablishing this precedent, the firm also represent clients in
state, federal, and international courts in litigation on various
issues from mergers and acquisitions, general contract claims,
distribution, labor, and other complex business issues.

A
cquiring and promoting strong relationships with our clients
has been one of our main goals and objectives, whereby our
dedication and full committment has not only created the
base for our success but has also reflected on the success of
our clients. We are looking forward to new relationships and promot-
ing new projects.

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Investor Edition

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quatem volore et et asitasi musciur alicae. ident harcidusciis andi-
porest audae.

How to Make
Your Success Grow
What is the EB-5 IMMIGRANT INVESTOR PROGRAM VISA

T
The Immigration Act of 1990 (“IMMACT In direct investments & investments through
90”) created the Immigrant Inves- a Regional Center, the investor must show
tor Program as the fifth preference that they created at least 10 direct or indirect
category for employment-based im- jobs within two years of an approved I-526
migration, also known as EB-5. This was the application. The purpose of the EB-5 program
I’m a success today be- first time a category specifically facilitated is to stimulate the U.S. economy through job
the admission of immigrant investors as creation and capital investment by offering
cause I had a friend who lawful permanent residents and currently immigrant investors the benefits of perma-
believed in me and I didn’t remains the only such category to do so. The nent residency in the United States.
EB-5 Immigrant Investor Program is avail-
have the heart to let him

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able to those immigrants who have invested, pproximately 10,000 visa numbers are
down. or are in the process of investing, at least allocated annually to EB-5 investors.
$1 million in a new commercial enterprise USCIS reserves 3,000 EB-5 visas for
employing at least 10 full-time U.S. workers. aliens who invest in TEAs and 3,000
Individuals who invest in a “targeted employ- for aliens who invest in commercial enter-
Abraham Lincoln ment area” (TEA), however, are only required prises affiliated with Regional Centers, as
to invest a minimum of $500,000.In addition, described below. However, participation in
immigrant investors can invest $500,000 in the investor program has traditionally been
a qualified and approved Regional Center. far below capacity. In the first few years after

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the establishment of the program, USCIS only


approved 300-400 I-526 applications. When
the EB-5 visa was originally created, it did
not include the Immigrant Investor Regional
Center Program, a USCIS five-year immigrant
investor pilot program created in 1993 in an
effort to encourage more investors to apply
for EB-5 permanent residency.

T
he purpose of the Immigrant Investor
Pilot Program is to attract more for-
eign investors to fund businesses and
projects in specific “regional centers”
that would otherwise find it difficult to at-
tract domestic investment based on current
geographical market trends. By bringing such
investment into areas of economic hardship
and high unemployment, Congress hopes to
stimulate job expansion, improve regional
productivity, invest in infrastructure, and
promote the growth of innovative new busi-
nesses. Congress has made the Immigrant
Investor Pilot program particularly attractive
to foreign investors by lowering the invest-
ment minimum to $500,000 (for a business
in a designated regional center or TEA) as
United States of America A secure business environment with
opposed to $1,000,000, and by allowing a less possibilities for expansion.
restrictive job creation requirement based
upon the creation of “indirect” and “direct”
jobs and not requiring the day to day manage-

 
grown in popularity. For instance, in 2008, US- The EB-5 visa essentially offers a good
ment of the business. The Immigrant Investor
CIS issued a total of 1,360 EB-5 visas. By 2012, immigration solution for those who have
Pilot Program has been extended several
this number amounted jumped to over 4,000 the financial resources to qualify and a
times, and was recently extended through
EB-5 visa applications; 80% of these came tolerance for high risk investments. It does
September 30, 2015.
directly from China. Part of this increase not require an employment offer from a U.S.
was due to the unprecedented economic employer as other employment-based im-

W
ith substantial improvements to
growth of China and the creation of many migration categories do, nor does it require a
the EB-5 category and increased
independently wealthy individuals. Addition- labor certificate. With the current economic
demand; each successive year,
ally, international investors have had their downturn, USCIS has relaxed its requirements
the number of EB-5 applicants has
options reduced as Canada recently ended its for the EB-5 program as a means to bring in
lenient& inexpensive immigrant investor pro- more foreign investment. Most importantly,
gram. In 2013, 8567 visas were issued through because the annual quota in the past consist-
the EB-5 category, and a retrogression of the ently exceeds the number of applicants, those
EB-5 visas is anticipated for 2014 (meaning who qualify for EB-5 status do not typically
that visas under the EB-5 category will not be have to wait long for a visa as there is current-
immediately available). ly no visa quota backlog for the EB-5 investor
category. This is likely to change in 2014, due

 
Approval for the EB-5 I-526 applications is to increased demand.
high. In 2009, USCIS received 1,028 submis-
sions of Form I-526. Of these, 966 were
approved and 163 were denied. Likewise,
in 2013, USCIS received 6,517 Form I-526. Of
these, 82.6% were approved. Most denials
occurred because investors failed to demon-
strate their investment funds were lawfully
acquired. Please see the EB-5 Immigrant
Investor Program Memo issued by the U.S.
Department of Homeland Security on June 16,
2010, for more details.
DANIEL LENGHEA, ready to guide you through the legal
process from financials to project success.

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Investor Edition

All good things come to those...


....who are prepared.

Nuts and Bolts :


Requirements
Specific Requirements Regarding EB-5 Investment and Employment

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Investor Edition

FUNDS REQUIREMENT U.S. dollars. The investor need not commit his/ 14.A death certificate
her entire capital immediately, but the invest- 15.Documentation of the investor’s receipt of
I. Minimum Amount Requirement ment must substantially complete prior to the inherited funds
Generally speaking, the minimum investment end of the 2-year conditional residency period. 16.Certification of payment of inheritance tax,
required to qualify for EB-5 status is $1,000,000 if any
per immigrant investor. However, the limit is Evidence of investment from lawful income: 17.If there is a lack of documentation tracing
reduced to $500,000 in cases of investment in 1.Five years of personal income tax returns funds from the deceased’s estate to the inves-
“targeted employment areas.” Such qualifying 2.Personal bank account statements for the tor, a statement of thorough explanation of
areas must have an unemployment rate 150% past couple of years the relationship, the amount inherited, and
of the national average. A rural area refers to 3.Salary reports other circumstances concerning the inherit-
a municipal area with a population less than 4.Salary verification letter from previous em- ance is required
20,000. Click on the following link for more in- ployers
formation about “targeted employment areas. 5.Five years of business income tax returns if Evidence of investment from transactions:
Please note that if there is a redemption clause income was generated from the operation of •Sale of business
in a commercial enterprise’s agreement that your business 1.Deeds
guarantees the return of a petitioner’s invest- 6.Business registration documents and own- 2.Closing statements
ment, such assets will not be deemed as “at ership if funding is from the operation of your 3.Bank account statements
risk”; a petitioner must infuse the full amount own business 4.Documentation tracing funds from the clos-
of at risk capital into an enterprise. For further 7.Articles of incorporation, share certificates ing of the transaction to the investor’s indi-
explanation of what constitutes an “at risk” in- and other similar documentation if funding is vidual account
vestment, please click here. from the operation of your business 5.Copy of the business registration before the
8.Business bank account reports for the past sale and immediately after the sale
II. Legitimate Source of Funds couple of years if funds are from the operation 6.Letter from the accounting firm that repre-
Assets acquired directly or indirectly by un- of your business sented the investor in the sale, indicating the
lawful means such as criminal activities are sale, sale price, and the identity of the buyer
not acceptable forms of capital. In practice, Evidence of investment funds from a gift: 7.Business financial information such as an
USCIS is very strict about reviewing the legiti- 9.Documentation proving funds from the do- evaluation from a certified accountant prov-
macy of funds. nor to the investor ing the value of the business
10.Statement explaining the circumstances of
III. Acceptable Types of Assets as Investment the gift and why the gift was made •Sale of real estate
Cash, equipment, inventory, other tangible 11.Gift tax return, if any 1.Purchase agreement
property, cash equivalents, and indebtedness 12.Documentation such as personal/business 2.Final settlement statement
secured by assets owned by the investor are income tax return and ownership of business 3.Receipt of funds from the buyer to investor
all acceptable investments for EB-5 purposes. proving the donor’s financial background to 4.Payment of real estate tax obligations
A loan to the company or any other debt be- demonstrate how he/she derived the funds 5.Title transfer evidence
tween the company and investor does not con- that were gifted 6.Past five years personal income tax returns
stitute an investment because such a mon- proving funds in the purchase of the real es-
etary transfer does not bear any investment Evidence of investment from an inheritance: tate that sold
risk (some exceptions apply, see below). All 13.Statement of the relationship between the
capital shall be valued at a fair market price in investor and the deceased •Sale of stock 1.Company’s incorporation doc-
uments or other company registration docu-
ments
THE LADDER OF SUCCESS
2.The share purchase agreement
One step at a time from the first meeting to accomplishment of our
objectives. 3.Evidence of the transfer of proceeds of the
stock sale from the brokerage company to the
investor’s account
4.Payment of tax obligations of the proceeds
of stock sale
5.Stock transaction record

•Investment funds from a loan. (Only a loan


secured by your assets as opposed to property
of the commercial enterprise that you invest-
ed in is eligible.)
1.Terms of the loan agreement
2.Documentation proving that the loan trans-
ferred from the lender to you
3.Lender’s business registration record, busi-
ness income tax returns if the lender is a
business or personal income tax return if the
lender is an individual.

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Investor Edition

EB-5 “At Risk”


Investment Definition
The United States is looking for strong and powerful investors who are
willing to invest funds and be ready to obtain considerable returns,
which returns are directly associated with the risks to be taken.

I
n order to qualify as an investment in the
EB-5 Program, the immigrant investor’s
capital must actually be placed “at risk” for
the purpose of generating a return and evi-
dence of such risk must accompany the EB-5
petition. The mere intent to invest is not suf-
ficient and prospective investment arrange-
ments entailing no present commitment
will not suffice to show that the applicant
is actively in the process of investing. While
the law does not specify what the degree of
risk must be, the entire amount of capital
must be at risk to some degree. According to
Matter of Izummi, a decision issued by the
Administrative Appeals Office (AAO) of USCIS,
if the immigrant investor is guaranteed the
return of a portion of his or her investment
or is guaranteed a rate of return on a portion
of his or her investment, then the portion of
the capital is not at risk. For the capital to
be considered “at risk” there must be a risk
of loss and a chance for gain. In Matter of
Izummi, the immigrant investor’s capital was Your photos title nobis seque de reptisint restiuntius expernatem
quatem volore et et asitasi musciur alicae. ident harcidusciis andi-
deemed not to be “at risk” because the invest- porest audae.
ment included a redemption agreement that
protected against the risk of loss of the capi-
tal and constituted an impermissible debt or use of a particular asset in consideration investor’s money can be held in escrow until
arrangement under 8 C.F.R. § 204.6(e) because of the investor’s contribution of capital into the investor has obtained conditional lawful
it was no different from the risk any business the new commercial enterprise (such as a permanent residence status if the immedi-
creditor incurs. In addition, an investment home or other real estate interest or item ate and irrevocable release of the escrowed
with a promise to return any portion of the of personal property), the expected present funds is contingent only upon approval of the
immigrant investor’s minimum required value of the guaranteed ownership or use of investor’s Form I-526 and subsequent visa
capital would also not be considered “at risk” such asset does not count toward the total issuance and admission to the U.S. as a con-
capital. If an agreement between the new amount of the investor’s capital contribution ditional permanent resident or, in the case of
commercial enterprise and the immigrant in deciding how much money was placed at adjustment of status, approval of the inves-
investor, such as that of a limited partnership risk. However, during or after the conditional tor’s Form I-485. Funds may be held in escrow
agreement or operating agreement, states residency period, an investor is not prohibited within the U.S. or in foreign escrow accounts
that the investor may demand return of or from receiving a return on his or her capital, as long as the petition establishes that it is
redeem some portion of capital after obtain- as long as, prior to or during this period and more likely than not that the minimum quali-
ing conditional lawful permanent residence before the requisite jobs have been created, fying capital investment will be transferred
status, that portion of capital is also not at the return is not a portion of the investor’s to the new commercial enterprise in the U.S.
risk. Additionally, if the investor is individually principal investment and was not guaranteed upon the investor obtaining lawful permanent
guaranteed the right to eventual ownership to the investor. It is important to note that an resident status.

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Investor Edition

a business plan demonstrating that 10 U.S.


workers will be hired within the next 2 years;
• If investors are in a category requiring a
$500,000 investment:
• Evidence demonstrating that 10 jobs have
been or will be created in the targeted em-
There should be a good reason, for people ployment area by a reasonable business plan;
flee from Europe to USA, and not from USA to and
• Statistical proof that the targeted employ-
Europe, don’t u agree? ment area has high unemployment and a
state agency’s letter demonstrating that the
area is classified as a “high unemployment”
THE GREEN CARD PROCESS previous years; area.
The EB-5 visa is a three-step self-petitioning • Certified copies of any judgments or
process consisting of Immigrant Petition evidence of all pending actions involving mon- New Commercial Enterprise
by Alien Entrepreneur (I-526), Conditional etary judgments within the past 15 years; Those who invest in a new commercial en-
Permanent Residence by Adjustment of • Sales contracts if the source of funds is from terprise must also provide proof of business
Status (I-485) for aliens inside the US/Consu- the sale of a house or business; organization documents or authorization to
lar Processing for alien’s outside the US, and • Bank statements, evidence of property do business in a U.S. state or municipality or
Removal of Conditional Residency (I-829). transferred from abroad, evidence of pur- Articles of Incorporation.
chased assets, stock certificates given for in-
Filing for Immigrant Petition (I-526) vestments, or loan or mortgage agreements. Troubled Business
Investors should first file Form I-526, “Im- • Evidence of the required investment EB-5 investors must maintain at least 10 jobs
migrant Petition by Alien Entrepreneur,” ac- • Evidence of the investor’s day-to-day opera- for a periodof two years starting from the pre-
companied by supporting documentation and tion of the enterprise through either manage- investment level. The investor should submit
the $1500 filing fee with the USCIS California ment or policy (does not apply to investors in photocopies of tax records, a comprehen-
Service Center. Subsequent to the approval a Regional Center Program) sive business plan, and Form I-9 and other
of form I-526, the intending immigrant needs • Title and description of the investor’s job documents to show the qualifications of the
to adjust status through an I-485 if he or she duties employees.
is in the U.S., or apply for an immigrant visa • If the enterprise is a partnership, evidence
through consular processing if he or she is proving the investor-partner’s management Regional Center Program
outside of the U.S. Unlike other immigrant cat- or policy-making activities. EB-5 investors need to show that they have
egories, EB-5 investors may not concurrently • Evidence showing the creation of at least 10 invested in a regional center by including
file form I-485 with their I-526. The required jobs for U.S. workers or a reasonable business a letter from USCIS attached to Form I-526
form I-526 documentation must show that the plan to show that it will create 10 jobs for U.S. designating the regional center. Furthermore,
immigrant investor has invested or is invest- workers EB-5 investors need to show that they have
ing the required lawfully-gained capital in • If investors have hired employees, I-9s forms created at least 10 direct or indirect full-time
a company within the U.S., and that the invest- and tax records; or positions or will create 10 direct or indirect
ment will create full-time jobs for at least 10 • If investors do not currently hire employees, jobs for U.S. workers.
U.S. workers.
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There are three ways to invest in the EB-5 quatem volore et et asitasi musciur alicae. ident harcidusciis andi-
category: a new commercial enterprise, porest audae.
a troubled business, or a regional center
pilot program. The filing fee for Form I-526 is
$1,500. Current processing time for I-526 is
about six months. Eligibility for each avenue
of investment varies; please see below for
specific information.

General Evidence Includes:


• Evidence of the existence of the enterprise
(such as past three years tax returns)
• Evidence of lawful capital:
• Corporate, partnership and/or personal tax
returns filed within the past 5 years;
• Foreign business registration re-
cords or evidence identifying other sources of
capital;
• Other proof of the investor’s income during

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Investor Edition

EB-5 Application
process overview
Once an investor has received I-526 approval, he or she can apply for
Conditional Permanent Residence by either going through consular
processing or filing Form I-485.

If You Are Living Outside the United States


You can become a permanent resident
through consular processing if you live out-
side the United States.

Consular processing is when USCIS works with


the Department of State to issue a visa on
an approved Form I-526, Immigrant Petition
by Alien Entrepreneur Petition when a visa
is available. As of 2014, EB-5 investor visas
have always been immediately available.
However, due to increased demand in the
EB-5 program, visa numbers are expected to
retrogress by the end of 2014 or the beginning
of 2015.Consular Processing time is between
6 months to 1 year, depending on the office.
Consular processing involves a visa interview,
biometrics, collection of necessary docu-
ments, and a medical exam by a Department
of State Panel Physician. Immediate family
members (Spouses & Children under age 21)
of EB-5 immigrant investors are eligible to
undergo consular processing at the same
time as the principle immigrant. More can be
found on consular processing here.

If You Are Living in the United States


You can become a conditional permanent
resident through adjustment of status if you
live inside the United States. Once Form I-526
is approved and a visa number is available,
you can apply for conditional permanent
residence using Form I-485, Application to
Register Permanent Residence or Adjust Sta-
tus. Adjustment of status requires one file an
application from within the United States with
the USCIS. Spouses & children under age 21
may also apply to adjust status concurrently
with the EB-5 investor if they are already in
the United States.
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Processing time is usually anywhere from 6 porest audae.

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Investor Edition

months to 1 year. Upon approval of the Form


I-485 or admission on an EB-5 immigrant visa,
the investor and his/her derivative family
members are granted two-years of “condi-
tional” permanent resident status. Children
must be unmarried and under the age of 21
to be considered derivatives at the time the
I-526 is filed.
The United States
Often times, there is confusion as to when
Citzenship and the 2 year period starts in which the investor
Immigration Service must begin to uphold the job requirement.
According to USCIS memo “AF M Update AD
regards every 09-04”, the two year job requirement com-
mences six months after adjudication of Form
application as a I-526. Moreover, according to the USCIS policy,
the investor’s company must create and
potential legitimate maintain 10 full time jobs within 30 months
investent but the (2.5 years) after the approval of I-526.

investor needs to
present a viable
project.

Consular Processing Investor and his family are


scheduled for the interview where the documents
are checked and the Green Card is approved.

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Daniel Lenghea P.A.
Business, Litigation & Immigration Law

BUSINESS LAW
start-ups, buy/sale of business, franchise, incorpo-
ration, registered agent, off-shore incorporation,
business compliance, securities, contracts, share-
holder agreements, derivative actions, licensing,
local government, general business litigation, ven-
ture capital, due diligence.

IMMIGRATION LAW
business visa, investor visa, E2, EB5, family green card,
adjustment of status, consular processing, reentry
permit, employment authorizations, extraordinary
ability aliens, performer visa.

DANIEL LENGHEA, P.A.


13899 Biscayne Boulevard
The Senator Building - Suite 415
North Miami Beach, FL 33181
Phone: +01 (954) 608-0312 Fax +01 (786) 581-7675
daniel@lenghea.com - www.lenghea.com