In this comprehensive guide, we will explore the supporting documents for the Form I-526 application process. Whether you’re an immigrant investor, a foreign national, an aspiring investor, or someone already in the EB-5 process for an immigrant visa, understanding these documents is essential for a smooth and successful journey.
By the end of this guide, you will have a clear roadmap for assembling the necessary documentation, ensuring your EB-5 application stands out and your business plan aligns with the program’s stringent requirements. Let’s embark on this informative journey to unlock the doors to your American dream.
Section 1: Attorney’s Involvement
Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative
This form is required only if a lawyer is helping you with your application package (which is highly recommended, due to the complex nature of the applicable legal principles and the required documentation). Your lawyer must complete and sign this form.
Section 2: Form I-526 Application Immigrant Petition by Standalone Investor (Alien Entrepreneur)
- Form I-526, Immigrant Petition by Standalone Investor: Ensure you complete form I-526 correctly, following the provided instructions on the United States Citizenship and Immigration Services (USCIS) website. When completing your form I-526 for submission, ensure accuracy and attention to detail:
- Sign Your Form: Your signature is essential; unsigned forms will be rejected.
- Use Current Edition: Download the latest form from the official website and fill it out electronically. Handwritten answers must be in black ink.
- Form Completeness: Fill out the entire form unless directed otherwise. Incomplete forms may be rejected.
- Avoid Errors: Do not use highlighters, correction fluid, or tape, as these can hinder scanning.
- Consistent Information: Maintain consistency in your name, date of birth, and A-Number across all forms, unless legally changed (provide proof).
- Correct Filing Fee: Pay the exact filing fee; incorrect or incomplete payments lead to rejection. Consider separate payments for multiple applications to avoid rejections affecting others.
- Cover Letter: It introduces your application and lists the supporting documents. Your immigration attorney can draft this for you.
Section 3: Establishing a New Commercial Enterprise (NCE)
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A new commercial enterprises means any for-profit activity formed for the ongoing conduct of lawful business. Evidence of establishment of an (NCE) include the business documents, and evidences depending on the type of organizational entity you are using which must include:
- Organizational Documents
- Articles of Incorporation: If your New Commercial Enterprise is a corporation, these articles outline the entity’s purpose, structure, and shareholders.
- Certificate of Merger or Consolidation: In cases where multiple entities are merging or consolidating to form the New Commercial Enterprise, this certificate formalizes the process.
- Partnership Agreement: For a New Commercial Enterprise structured as partnership, this agreement defines the roles and responsibilities of partners.
- Certificate of Limited Partnership: Specific to limited partnerships, this certificate establishes the roles of general and limited partners.
- Joint Venture Agreement: When two or more entities collaborate on the New Commercial Enterprise, this agreement outlines the terms and goals of the joint venture.
- Business Trust Agreement: In the case of New Commercial Enterprise structured as business trusts, this agreement details the trust’s operations and objectives.
- Certificate Evidencing Authority: This certificate verifies that your New Commercial Enterprise is authorized to conduct business in a specific state or municipality, or it may state that such a certificate is not required.
- Expanded Businesses: Demonstrating Capital Transfer and Growth: For investors involved in expanding existing businesses, it’s crucial to show that the required capital infusion has led to a significant increase in the business’s net worth or the number of employees. To support this claim, gather evidence that includes:
- Stock Purchase Agreements: If applicable, provide agreements outlining the purchase of company stock with the EB-5 capital.
- Investment Agreements: These documents detail the terms of the investment and its impact on the business.
- Certified Financial Reports: Include financial reports that clearly demonstrate the increase in the business’s net worth resulting from the EB-5 investment.
- Payroll Records: Document the hiring of new employees or the increase in existing staff as a direct consequence of the capital injection.
- Similar Instruments and Agreements: Any additional agreements or documents that validate the investment’s substantial impact on the business’s growth.
Section 4: Transactional Documents for the Project (if applicable)
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The legal structure of minimum investment in the project is crucial for both investors and USCIS. Transactional documents establish the foundation for your investment and include:
- Limited Partnership Agreements: When the project is structured as a limited partnership, these agreements define the roles and responsibilities of limited and general partners.
- Operating Agreements: For projects organized as limited liability companies (LLCs), operating agreements detail the management and operational structure.
- Escrow Agreements: These agreements outline the secure handling of investment funds, ensuring they are released to the project in compliance with EB-5 program requirements.
- Subscription Agreements: Investors sign these agreements to confirm their investment in the project, including the amount and terms of their commitment.
- Loan Agreements: If loans fund the project, provide details on terms, repayment schedules, and conditions.
- Offering Memoranda: These documents serve as an informational prospectus for potential investors, providing details about the project’s objectives, risks, and financial projections.
Section 5: Targeted Employment Area (TEA) Evidence
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Targeted Employment Area (TEAs) are areas where investment can have a more significant impact, and they often play a vital role in EB-5 applications, we’ll explore the different types of TEAs and the evidence needed to demonstrate your eligibility:
- TEAs in Rural Areas: If your EB-5 project is located in a rural area, you’ll need to provide evidence that your investment qualifies as such. This typically means showing that the project is situated:
- Outside of Standard Metropolitan Statistical Areas (MSAs): MSAs are urban regions defined by the U.S. Office of Management and Budget. Evidence should indicate that the project is not within an MSA.
- Outside of Cities or Towns with a Population of 20,000 or More: Provide data from the most recent U.S. Census confirming that the project is located outside any city or town with a population exceeding 20,000.
- TEAs in High Unemployment Areas: For projects in high unemployment areas, you must substantiate that the location qualifies. This can be done through:
- Unemployment Data for the Relevant Area: Gather unemployment data for the Metropolitan Statistical Area (MSA) or county where the new commercial enterprise (NCE) is primarily operating. This data should demonstrate an average unemployment rate of at least 150% of the national average rate.
- Certification from State Government: Alternatively, obtain a certification letter from an authorized state government body stating that the area where the NCE operates has been officially designated as a high unemployment area.
Section 6: Investment Capital
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Eb 5 investment capital includes cash and tangible assets owned by the investor, valued in U.S. dollars. The minimum investment amount depend on the filing date and location, on or after 3/15/2022, the minimum investment is $1,050,000 overall, $800,000 in TEA or rural (including infrastructure projects).
The heart of the EB-5 program is demonstrate that the invested capital will lead to the creation of qualifying jobs. To prove your commitment, you must provide the following documents:
- Bank Statements: Provide copies of your bank statements that clearly show the amounts you’ve deposited into the NCE’s U.S. business accounts.
- Evidence of Assets Purchased: If you’ve bought assets for the NCE, such as equipment or inventory, include documents like invoices, sales receipts, and purchase contracts. These papers should mention what was bought, how much it cost, when it was bought, and who made the purchase.
- Property Transfer from Abroad: If you’ve moved property from another country to be used by the NCE, submit documents like U.S. Customs and Border Protection’s commercial entry records, bills of lading (which detail shipments), and transit insurance policies. These should clearly indicate ownership info and the property’s fair market value.
- Money Transfers for Stock: If you’ve given money to the NCE in exchange for shares of stock, provide evidence of these transactions. Note that the stock should not have terms that allow the NCE to buy it back at your request.
- Loans or Mortgages: If you’ve borrowed money, and you’re personally and primarily responsible for repaying it (not the NCE), submit evidence of this arrangement. This may include loan agreements, promissory notes, or security agreements.
- Proof of NCE’s Business Activity: To demonstrate that the NCE is actively engaged in business, provide documents related to its operations:
- Invoices: Any bills or invoices the NCE has issued to clients or customers.
- Purchases: Documents showing what the NCE has bought for its business operations.
- Contracts: Agreements related to the NCE’s business dealings, which may include contracts with suppliers, service providers, or customers.
Section 7: Investor’s Source of Funds Documentation
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When applying for an EB-5 visa, it’s essential to show that your investment was made through lawfully sourced funds. Here’s how you can provide sufficient evidence:
- Foreign Business Registration Records: If your funds are from a foreign business, provide records that show the legal registration of that business in its home country.
- Business Tax returns: If you have any corporate, partnership, or other entity tax returns from the last seven years, include them in your application. These documents demonstrate financial activity and compliance with tax laws.
- Personal Tax Returns: Submit your personal tax returns, including income, franchise, property, or any other types of returns you’ve filed over the last seven years. This shows your financial history and adherence to tax regulations.
- Evidence of Other Funding Sources: If there are other sources of capital contributing to your investment, provide documentation that identifies and explains these sources.
- Judgments and Legal Actions: Include certified copies of any judgments or evidence of ongoing government civil or criminal actions, administrative proceedings, or private civil actions that involve monetary judgments against you, both within and outside the U.S., for the past 15 years.
- Trace Your Funds: Demonstrate the path of your funds from their source to the New Commercial Enterprise (NCE). This can be done with documents like:
- Wire Transfer Records: Provide records that show the movement of funds from their original source to your bank account.
- Bank Statements: Include statements that reveal where the funds originated and their journey to the NCE. This helps confirm the legitimacy of the source.
Section 8: Employment Creation Evidence
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Evidence that the entity’s board will create or preserve at least 10 full-time jobs over the next two years. The eligible employees are typically U.S. citizens, U.S. nationals, lawful permanent residents, or other immigrants authorized to work in the U.S. This definition excludes family members of foreign nationals and nonimmigrant aliens. Here’s how you can prove this:
- Comprehensive Business Plan: Provide a detailed business plan that outlines why and when you’ll hire at least ten qualifying employees. This plan should show how your investment will lead the job creating entity.
- Relevant Tax Records and Forms I-9 (if employees have already been hired)
- Relevant Tax Records: Include copies of tax records that prove the existence of the required number of employees.
- Forms I-9: Submit Form I-9s or similar employment documents for the qualifying employees.
- Regional Centers (if applicable): If you’re working with a regional center, provide evidence of a reasonable plan to indirectly create the necessary jobs through the business
- Troubled Businesses (if applicable)
- Business Existence: Demonstrate that the NCE has been in existence for at least two years.
- Financial Loss: Show that the NCE has incurred a net loss according to generally accepted accounting principles during a specific period before your priority date on Form I-526. This loss should be at least 20% of the troubled business’s net worth before the loss.
- Employee Maintenance: Prove that the NCE will maintain the same number of employees as it had before your investment for a minimum of two years.
Section 9: Proof of Management Involvement
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You need to show that you are actively involved in managing the New Commercial Enterprise. This can be proven by:
- Describing Your Role: Provide a statement that includes your job title and a detailed description of your responsibilities within the NCE.
- Corporate Officer or Board Member (if applicable): Provide evidence of your official role as a corporate officer or board member, such as corporate records or appointment letters.
- For Partnerships (if applicable): Show your direct involvement in day-to-day management or policy-making activities through documents or role descriptions.
Section 10: Regional Center Affiliated Petitions
When pursuing your EB-5 visa through a regional center, specific documentation is crucial. The regional center might also help you with other documentation. If the regional center has established a project in an already-designated TEA, for example, it can provide you with documentation supporting your investment destination’s status as a TEA, thereby relieving you of the burden of proving it on your own.
Here is what you need for Regional Center Affiliated Petitions:
- Form I-924 Approval: Include the Form I-924 approval notice from USCIS, designating the regional center linked to your petition.
- For regional center affiliated petitions seeking deference with previously approved project:
- Business Plan: Detailing the project’s objectives, strategies, and financial projections.
- Economic Analysis: Presenting the economic impact of the project, crucial for demonstrating job creation.
- Organizational and Transactional Documents: Outlining the legal structure, partnerships, and operational plans of the project.
In navigating the complex journey to obtain a U.S. green card through the EB-5 immigrant investor’s only program, seeking professional guidance from immigration services is not just a choice; it’s a strategic decision that can significantly impact your success.
While this guide has provided valuable insights, the importance of consulting an experienced immigration attorney cannot be overstated.
An immigration attorney brings expertise, experience, and a deep understanding of the ever-evolving immigration landscape. They can offer personalized guidance, help you make informed decisions, and ensure that your immigrant visa application package and business plan is meticulously prepared and optimized for success.