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Obtaining Permanent Residence by Investment in USA

One can obtain permanent residence in the United States strictly on the basis of investment of money in a business here. The investment must be large and create at least 10 jobs. But for those persons with capital and business skills, this offers an alternative to avoid the much longer, more difficult process of getting a green card through an employer known as labor certification. The labor certification process involves proving a shortage of workers in a particular field; that’s not required for investors.

In this article, I describe what is necessary to obtain a green card based upon an investment.

The Investor permanent residence classification requires a minimum capital investment of $1 million.
However, if the investment is in a “targeted employment area”, the minimum capital that must be invested to qualify for the investor visa category is reduced from $1million to $500,000. A “targeted employment area” is a rural area or an area of high unemployment exceeding 150 percent of national average. The location of the investment is the place where the enterprise is “principally doing business” at the time of the investment.

The entire amount need not be cash.
An investment of assets that are not cash, such as equipment or inventory, is measured by the amount of its fair market value. The invested funds can be put in an escrow to protect the investor in case the application is denied. The escrow would hold the money until the visa is approved.

The investment may be made over time.
In fact, if someone has a E-2 investor visa, the investment that qualifies the investor for an E-2 visa may be supplemented with additional capital in order to qualify the minimum capital requirement of Investor resident status.

The applicant for the Investor Status need not have any special qualifications. No advanced degree is necessary. No specific work experience. The law requires only that the investor will be “engaged” in the enterprise, which can be a minimal role. But the government requires some participation in the management of the enterprise, either day-to-day managerial control or a role in policy formulation.

The capital invested must be the applicant’s capital and the applicant must prove the source of the money and that the sources of the capital were legal ones. The petitioner’s investment cannot be a loan from the investor to the enterprise -- it must be an investment at risk.

The law does allow multiple petitioning investors in the same enterprise, without regard to percentage ownership and the existence of non-petitioning investors, so long as each petitioning investor can document sufficient job creation.

The application must prove that the investment already has created ten full-time jobs. The jobs filled by the investor or the investor’s immediate family do not count toward meeting the requirement. The jobs must be full-time, although part-time positions can be combined to equal ten full-time positions.

The law does permit investments in existing businesses to qualify for this classification. In 2002, the requirement that the petitioner “establish” a new commercial enterprise was eliminated. If the investment is made in a business that has experienced substantial losses in past years, the petitioner may meet the jobs requirement by presenting a comprehensive business plan and evidence that the investment is saving jobs.

The law requires a commercial enterprise that is a for-profit activity formed for the ongoing conduct of lawful business. Consequently, merely investing $1 million in real estate or one time construction projects will not be sufficient.

The investor’s status is “conditional” for the first two years of residence. Prior to the end of this two-year conditional residence period, the investor must file another showing the investor has maintained the investment and created the required employment. But if the petitioner has terminated the investment at any time prior to filing the petition to remove the condition, the petition will likely be denied and the status will be lost. Once the condition is removed, the investor enjoys permanent residence no matter what happens to the investment or the enterprise.

The permanent residence investor status is an important alternative method for business people and investors from Poland. The only other investor visa, the E-2 visa, is also available to nationals of Poland, but has additional restrictions and is only a temporary visa. By meeting the conditions described above, Poles can apply for a green card as an investor.