Allows for conditional residency for persons who, after November 29, 1990, invest $1,000,000 (or under certain circumstances $ 500,000) in a new commercial enterprise that employs 10 US workers full time and manages the business on a day-to-day basis or through policy formation. 7% of or 3,000 worldwide visas per year are set aside for "targeted employment areas."
Person must establish a new commercial enterprise.
Commercial enterprise includes a broad spectrum of business relationships including holding companies and their wholly-owned subsidiaries, provided they are all for profit business operations.
A new commercial enterprise includes 8 CFR § 204.6(h);
The creation of an original business.
The purchase of an existing business and its simultaneous or subsequent restructuring or reorganization so that a new commercial enterprise results.
The expansion of an existing business so that its net worth or employees increases by 40%. The investor still needs to show the minimum financial investment and the creation of at least 10 jobs.
Investments- 8 CFR § 204.6(f):
Invests (after November 29, 1990) or is actively in the process of investing, capital of $ 1,000,000; or
Invests (after November 29, 1990) or is in the process of investing, $ 500,000 if the investment is in a targeted employment area (i.e., a rural area of less than 20,000 population or an area that has experienced high unemployment of at least 150% of the national average).
Investment can be cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the entrepreneur, provided personally and primarily liable and that the assets of the new commercial enterprise are not used to secure any of the indebtedness. All capital is valued in U.S. dollars. 8 CFR § 204.6(e).
Investment can come from funds in joint account owned by beneficiary and spouse. Memo, Weinig, Acting Asst. Comm. Adjudications (August 5, 1992) reprinted in 11 AILA Monthly Mailing 776 (October 1992).
Must create full-time employment for at least 10 U.S workers (other than applicant or his/her immediate family).
Independent contractors are not considered employees. 8 CFR § 204.6(e).
Employment must be full-time (35 hours/week).
U.S. workers include United States Citizens (USC), Legal Permanent Residents (LPR), Conditional Resident (CR), temporary residents, asylees, refugees, suspension of deportation. It does not include family members of the investor.
Multiple investors- 8 CFR § 204.6(g). Can have multiple investors including non-qualifying ones (e.g., USC’s). Each investor who wishes to qualify must independently meet the capital and employee requirements. All full-time employee positions, however, may be credited to the qualifying investors.
Partnerships. If limited partnership agreement it must provide investors with rights, powers and duties under the Unified Limited Partnership Act. If the limited partnership is an investment fund investing in unrelated companies, then the investor’s management is related to the fund not to the companies. Letter, Weinig, Acting Asst. Comm. CO 204.27 (August 5, 1992) reprinted in 69 Interpreter releases 1452-53 (November 9, 1992).
Evidence required—8 CFR § 204.6(j)
Regarding the enterprise:
Articles of incorporation or business organization documents; or
Authorization to do business in a state or municipality.
Regarding the Investment:
Documents evidencing investment which may include which may include bank statements, evidence of purchased assets; evidence of property transferred from abroad; stock certificates given for investment, or a loan or mortgage agreements.
Regarding obtaining the capital through lawful means:
Foreign business registration records;
Corporate, partnership and personal tax returns filed within 5 years;
Evidence identifying other sources of capital; or
Certified copies of any judgements or evidence of all pending governmental civil or criminal actions, administrative actions, and any private civil actions involving monetary judgements within the past 15 years.
Job creation of 10 jobs:
I-9’s, tax records if employees already hired; or
A copy of a comprehensive business plan demonstrating where the 10 employees will be hired and giving approximate dates within the next 2 years.
If the enterprise is a "troubled business" (having lost 20% of its assets) must provide proof that the existing employees will be retained.
Petitioner will be managing business on a day-to-day basis or through policy formation:
Title and description of his/her job duties.
Evidence that he/she is a corporate officer and director; or
If partnership, that partners management policy making activities consistent with the Uniform Limited Partnership Act. 8 CFR § 204.6(j)(5)(iii).
Target Employment Area (where applicable):
Evidence of statistical area;
Letter from state agency that area is high unemployment.
Application Process—8 CFR § 204.6(a)-(d). I-526. Priority date established on filing. Application submitted to Service Center having jurisdiction over the area of the enterprise.
Conditional Grant—similar to CR status for marriages. INA § 216A(a).
Can remove condition after 2 years.
Investor must petition for removal of CR status:
Must petition within 90 days of 2nd anniversary:
Petition must contain facts and information demonstrating that:
a commercial enterprise was established by the investor;
the applicant invested or was actively investing the required capital;
the investor sustained the enterprise and investment.
Must have interview within 90 days after person submits petition. Adjutant General (A.G.) may waive 90 day deadline for interview or requirement for an interview altogether. INA § 216A(d)(3).
A.G. Must make determination within 90 days of filing or interview (whichever is later).
Termination of Status:
If petition not filed, unless good cause and extenuating circumstances shown. INA § 216A(d)(2).
If alien does not appear for interview, unless there is good cause shown. INA § 216A ( c )(2)(A)(ii).
If A.G., after interview, determines that the facts in the petition are untrue.
If A.G., during 2 year period, determines that it was not a qualifying investment under INA § 216A(b)(I) because:
Enterprise established solely to evade immigration laws;
No commercial enterprise was established;
Investor did not invest or was not in process of actively investing;
Investor was not sustaining investment as commercial enterprise; or
Investor was not otherwise conforming to investor status.
Children/Spouse. If principal investor terminated spouse and children are terminated if they obtained visa on conditional basis. INA § 216A ( c )(2)(A). If child becomes 21 after conditional basis is granted the condition may be removed and the child remains as LPR. Memo, Weining, Acting Asst. Comm. Adjudications (undated) reported in 11 AILA Monthly Mailing 545 (July/August 1992).
Deportation Proceedings:
Investor can be deported under INA § 241(a)(1)(D)(I), b USC §1251 (a)(1)(D)(I), if status terminated. If status terminated because A.G., during 2 year conditional residence period or after an interview at the end of the 2 year period, found applicant ineligible, the burden is on the A.G., by a preponderance of the evidence. INA § 216A(b)(2), ( c )(3)(D). However, if the investor fails to appear without valid cause at the interview, or fails to file petition removing condition, the burden is on the investor to establish eligibility. INA § 216A ( c )(2)(B).
Stay of Deportation—A.G. may stay the deportation proceeding to give an investor an opportunity to file petition to remove CR where the investor failed to file within 90 day period.
Immigrant Investor Pilot Program
Section 610 of the Appropriations Act, Pub.L.No. 102-395 (October 6, 1992); 58 Fed. Reg. 44,606-08 (Aug. 24, 1993); 8 CFR § 204.6(m), established a pilot program for immigrant investors that would permit investment through regional centers that would relax the job creation requirements for employment creation visas. The program is limited to 300 visas per year for 5 years beginning October 1, 1993.
A regional center wishing to participate must demonstrate how "it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment." 8 CFR § 204.6 (m)(3)(i).
The investor must meet all criteria of employment creation investors except he can demonstrate that the investment in the regional center will create jobs indirectly through revenues geneated by increased exports. 8 CFR § 204.6 (m)(7).
