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Conditional green cards with no visa backlog
The so-called "investor visa" has been available since 1990. There are 10,000 visas available each year but at most only about 1000 people have immigrated in this category each year - about one-tenth of the visas available. Given the serious backlog in the most common employment-based visa categories it is time to take another look at this underutilized visa category
In 2003, Congress asked the US Government Accountability Office to study the investor visa program and the reasons for its under-use. The GAO report concluded that the under-use was due to very onerous statutory requirements, a rigorous application process and the failure to issue regulations implementing laws passed in 2002 to facilitate adjudication of these applications. The report also noted however, that even though very few people had used this visa category participants have invested an estimated $1 billion in a variety of US businesses.
Perhaps encouraged by these figures, USCIS has vowed to give more attention to the investor visa program. In September 2004, USCIS held a public meeting to discuss investor visa issues. In January 2005, they established a new Investor and Regional Center Unit (IRCU) at USCIS headquarters. The IRCU is designed to provide oversight for investor visa policy and regulatory developments, field guidance, and training. These recent developments seem to indicate a major change in USCIS policy toward the investor visa category. Indeed, at the AILA National Conference held in San Antonio in June, 2006, Maurice Berez, Chief Adjudications Officer of the Investor and Regional Center Program touted the investment facilitated thus, despite under-use of the program, and seemed genuinely enthused about the prospect of facilitating significant additional investments in our business communities by making this application process more user friendly.
To qualify under the investor visa category, the immigrant investor must:
The Pilot Program
Alternatively, immigrant investors may benefit from the somewhat relaxed requirements of the regional pilot program implemented by Congress in 1993. The pilot program was created to encourage immigration through the investor visa program. It has been renewed several times and is currently in effect until September, 2009. A number of regional centers have been approved, but there are only a handful actively seeking investors for their projects.
The pilot program differs from the regular program in several important ways. First, it allows for qualifying investments to be made in approved "regional centers." Regional centers are defined as any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation or increased domestic capital investment.
The second distinction between the regular and the pilot program is that investors who invest in Regional Centers are not required to show that their investment itself will employ 10 US workers. Rather, it is enough if they can show that 10 or more jobs will be created directly or indirectly as a result of the investment.
Third, the requirements regarding active management are somewhat relaxed for investors in Regional Centers. The requirement will be satisfied if they have a policy-making role in the enterprise.
Finally, the application procedure differs. The regular program requires the petitioner to submit all of the required evidence while the pilot program requires the designated regional center to certify that the investor has met its criteria.
Initial evidence
Following is a list of the evidence that should be submitted with the petition for investor visa classification under the regular program:
Removing the conditions
Upon approval of the visa petition, the investor and his or her family members become conditional residents for two years. Prior to the expiration of the two years, the investor must file a petition to remove the conditions. The petition must be accompanied by evidence that the individual invested the required capital, and that the investment created or will create 10 full-time jobs.
Conclusion
Qualifying for investor visa status is one of the most complicated areas of immigration law. Investors may be able to come to the United States through other temporary or permanent visa categories such as the E-2 investor, or L-1 intra-company transferee or multinational executive or manager routes. Nevertheless, residency through an investor visa is looking more and more like an attractive option particularly for those investors who are not particularly interested in actively managing the day-to-day operations of a new commercial enterprise.
In 2003, Congress asked the US Government Accountability Office to study the investor visa program and the reasons for its under-use. The GAO report concluded that the under-use was due to very onerous statutory requirements, a rigorous application process and the failure to issue regulations implementing laws passed in 2002 to facilitate adjudication of these applications. The report also noted however, that even though very few people had used this visa category participants have invested an estimated $1 billion in a variety of US businesses.
Perhaps encouraged by these figures, USCIS has vowed to give more attention to the investor visa program. In September 2004, USCIS held a public meeting to discuss investor visa issues. In January 2005, they established a new Investor and Regional Center Unit (IRCU) at USCIS headquarters. The IRCU is designed to provide oversight for investor visa policy and regulatory developments, field guidance, and training. These recent developments seem to indicate a major change in USCIS policy toward the investor visa category. Indeed, at the AILA National Conference held in San Antonio in June, 2006, Maurice Berez, Chief Adjudications Officer of the Investor and Regional Center Program touted the investment facilitated thus, despite under-use of the program, and seemed genuinely enthused about the prospect of facilitating significant additional investments in our business communities by making this application process more user friendly.
What are the requirements?
The Regular ProgramTo qualify under the investor visa category, the immigrant investor must:
(1) Invest $1 million or $500,000 if the investment is made in a "targeted employment area";
(2) In a new commercial enterprise, which;
(3) Benefits the US economy and
(4) Creates full-time employment for at least 10 US workers.
(5) The investor must be involved in the management of the new commercial enterprise.
(2) In a new commercial enterprise, which;
(3) Benefits the US economy and
(4) Creates full-time employment for at least 10 US workers.
(5) The investor must be involved in the management of the new commercial enterprise.
The Pilot Program
Alternatively, immigrant investors may benefit from the somewhat relaxed requirements of the regional pilot program implemented by Congress in 1993. The pilot program was created to encourage immigration through the investor visa program. It has been renewed several times and is currently in effect until September, 2009. A number of regional centers have been approved, but there are only a handful actively seeking investors for their projects.
The pilot program differs from the regular program in several important ways. First, it allows for qualifying investments to be made in approved "regional centers." Regional centers are defined as any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation or increased domestic capital investment.
The second distinction between the regular and the pilot program is that investors who invest in Regional Centers are not required to show that their investment itself will employ 10 US workers. Rather, it is enough if they can show that 10 or more jobs will be created directly or indirectly as a result of the investment.
Third, the requirements regarding active management are somewhat relaxed for investors in Regional Centers. The requirement will be satisfied if they have a policy-making role in the enterprise.
Finally, the application procedure differs. The regular program requires the petitioner to submit all of the required evidence while the pilot program requires the designated regional center to certify that the investor has met its criteria.
Initial evidence
Following is a list of the evidence that should be submitted with the petition for investor visa classification under the regular program:
(1) Organizational documents for the new commercial enterprise or, for investment in existing businesses, proof that the required amount of capital was transferred to the business and that the investment has increased the new worth or number of employees by more than 40 percent;
(2) Proof of capitalization including bank statements, evidence of assets purchased or property transferred from abroad, or evidence of debts secured by investors assets;
(3) Proof that capital was acquired by legal means including foreign business registration records, personal and business tax returns for the last 5 years;
(4) Proof that new commercial enterprise has created or will create at least 10 full-time positions including tax records, Forms I-9 or a comprehensive business plan showing the need for at least 10 employees;
(5) Managerial capacity of the investors including a comprehensive job description setting forth the position occupied by the investors, evidence that the petitioner is a corporate officer or on the board of directors, evidence that the petitioner involved in direct management activities or policymaking activities in a general or limited partnership.
(6) If applicable, designation of a high unemployment area including boundaries of the subdivision, the date of the designation and the methods by which the statistics were gathered;
(7) Benefit to the US economy, including letters from local government officials, chambers of commerce, or regional development agencies
(2) Proof of capitalization including bank statements, evidence of assets purchased or property transferred from abroad, or evidence of debts secured by investors assets;
(3) Proof that capital was acquired by legal means including foreign business registration records, personal and business tax returns for the last 5 years;
(4) Proof that new commercial enterprise has created or will create at least 10 full-time positions including tax records, Forms I-9 or a comprehensive business plan showing the need for at least 10 employees;
(5) Managerial capacity of the investors including a comprehensive job description setting forth the position occupied by the investors, evidence that the petitioner is a corporate officer or on the board of directors, evidence that the petitioner involved in direct management activities or policymaking activities in a general or limited partnership.
(6) If applicable, designation of a high unemployment area including boundaries of the subdivision, the date of the designation and the methods by which the statistics were gathered;
(7) Benefit to the US economy, including letters from local government officials, chambers of commerce, or regional development agencies
Removing the conditions
Upon approval of the visa petition, the investor and his or her family members become conditional residents for two years. Prior to the expiration of the two years, the investor must file a petition to remove the conditions. The petition must be accompanied by evidence that the individual invested the required capital, and that the investment created or will create 10 full-time jobs.
Conclusion
Qualifying for investor visa status is one of the most complicated areas of immigration law. Investors may be able to come to the United States through other temporary or permanent visa categories such as the E-2 investor, or L-1 intra-company transferee or multinational executive or manager routes. Nevertheless, residency through an investor visa is looking more and more like an attractive option particularly for those investors who are not particularly interested in actively managing the day-to-day operations of a new commercial enterprise.