Key Practice Areas

Basic Requirements for Immigrant Investor Status

In order to qualify for immigrant investor classification, a foreign national must invest at least $ 1 million in a new commercial enterprise that will:

  1. benefit the U.S. economy; and
  2. create full-time employment for at least 10 workers.

The investor must have a management role in the enterprise.

There are two basic requirements for showing a “new commercial enterprise.” First, the enterprise must be “new,” i.e., formed after November 29, 1990. Second, it must be a “commercial” enterprise and must be an on-going for-profit enterprise engaged in any lawful business. The definition of “new commercial enterprise” specifically includes a holding company and its subsidiaries, if each subsidiary is engaged in a for-profit activity.

To document the enterprise, the following documents are needed:

  • Organizational documents for the new enterprise, including articles of incorporation, share certificates, certificates of merger or consolidation, or partnership agreements.
  • Business licenses.

The statute requires the investor to have invested or be in the process of investing $1 million in capital into the enterprise. Capital is defined as “cash, cash equivalents, equipment, inventory, and other tangible property” and does not generally, except in specific circumstances, include loans. To document that you have invested the required amount, the following evidence is acceptable:

  • Bank statements showing amounts deposited into the U.S. business.
  • Evidence of assets purchased for the enterprise in the U.S. including invoices, sales receipts, and purchase contracts containing sufficient information to identify such assets.
  • Evidence of property transferred from abroad for use in the U.S., including US Customs Service commercial entry documents, bills of lading, and transit insurance policies containing ownership information and sufficient information to identify and value the property.
  • Evidence of monies transferred to the enterprise in exchange for shares of stock.
  • Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing secured by the personal assets of the petitioner.

It is necessary to show that the capital invested in the new commercial enterprise was obtained through lawful means. To document that the money was legally obtained, the petition may be supported by the following:

  • Foreign business registration records.
  • Corporate, partnership or personal tax returns filed within the last five years. These must be submitted.
  • Evidence identifying any other source of capital.

The law also requires that the immigrant investor be engaged in the new commercial enterprise. This requires you to maintain more than a passive role. We do not expect this to be an issue as we are aware of your very prominent roles in your businesses. Nonetheless, the following evidence must be submitted:

  • A comprehensive job description for your position. We can use a job description based upon the position in your H-1B petition.
  • Evidence that you are a director or an officer.

Finally, you must show that the new commercial enterprise employs or will employ at least ten workers, not including yourself. The petition must include:

  • Evidence of ten current employees such as I-9 and tax records; or
  • A comprehensive business plan showing the need for at least 10 qualifying employees and when they will be hired. The plan must include a description of the business, the business’ objectives, a market analysis including names of competing businesses and their relative strengths and weaknesses, a comparison of the competition’s services and costs, a description of the target market and prospective customers, details of projects undertaken, organizational structure, and sales and marketing plans. In addition, specifically with respect to employment, the business plan must set forth the company’s personnel experience, staffing requirements, job descriptions for all positions and a timetable for hiring.

It is not necessary for the business to employ the ten workers at the time of filing the initial petition for immigrant investor status.

The initial petition is filed with the Texas Service Center (TSC) and must be accompanied by a $400 fee and the evidence described above. After the immigrant visa petition is approved, an adjustment of status to permanent residence is filed. Although it is now taking nearly two years to adjudicate applications for adjustment, in about 90 days applicants receive advance parole, which permits the individual to travel in and out of the U.S. without the need to appear at a U.S. consulate for an interview or a visa.

After status is adjusted, the investor obtains conditional resident status. This is essentially similar to permanent residence, except a petition to remove the conditional nature of the residence must be filed within two years of the date of adjustment. This petition must be accompanied by evidence that the investor invested or remains in the process of investing the required capital and that the investment has created or will create the ten full-time jobs. Once this petition is approved, permanent residence status is accorded.