Is it possible to obtain an immigrant visa through investment?

June 27, 2014 Mario Guevara-Martinez

Published on 27 June 2014 Hits: 811

One of the common questions the immigrant community has is if and how one can obtain an immigrant visa through investment. When employment and/or family bases are not an option, one naturally wonders about immigration through investment. The short answer is yes. One can obtain an immigrant visa through a substantial investment and employment creation. This category is, in fact, one of the most underused categories, and currently there is no worry about the number of visa ever running out. This immigrant category should also be distinguished from the E-2 treaty investor nonimmigrant category that was the subject of a previous column.

Yet, most hopeful immigrants are either unwilling or unable to meet the stringent requirements of this category and opt out for another category. First, the basic investment amount is $1 million unless the business is established in a "targeted employment area" or "regional center", in which case the required investment is $500,000. Second, the investment must create at least 10 full-time jobs for U.S. citizens, lawful permanent residents or other immigrants lawfully authorized for employment in the United States except in the case of an investment in a "troubled business" or "regional center". The jobs held by the investor and his immediate family members are not counted for the 10 jobs. Third, the alien investor will either have day-to-day management control of the business or act as a policy maker, including a corporate officer and a limited partner.

Fourth, in order to deter fraud, immigrant investors, their spouses and dependent children are subject to conditional permanent residence for a two-year period until the USCIS re-examines the business and determines that all the requirements have been met.

As one can infer from the above, it is not easy to create 10 new and full-time jobs and sustain it for over 2 years even if one can meet the minimum $1 million investment requirement, especially when the investor, a foreigner and is not very familiar with the US business environment. It is a very substantial risk one must take.

Also, in most cases, the hopeful investor immigrants are well-settled and successful middle-aged or older entrepreneurs, executives, or retirees, who are not interested in actively managing the new business. However, indirect management will not qualify them for the investor immigrant category. If they wanted to actively manage their own branch office or subsidiary in the U.S., they could easily obtain an immigration visa through the first-priority category - a much cleaner route.

Because of the impracticality of the requirements, several private companies have attempted to establish complex business structures that comply with the relevant statutory and regulatory requirements while still protecting the investor from risk.

Such business arrangements often involved guaranteed interest payments, "buy and sell" options, and other mechanisms designed to limit the investor's risk. According to the some arrangements, the investor only had to deposit $100,000 down payment of cash for 5 years with the remainder in the form of a promissory note and received even the down payment back at the end of the contract. By the end of 1997, these business structures were determined not to comply with the statute and regulations governing this category, which resulted in retroactive revocation of previously approved petitions and termination of the status of existing conditional permanent residents.

Petitions involving such complex financial arrangements will no longer be adjudicated. Given the above account of this investor immigrant category, I would caution the reader against participating in any complex financial arrangements with the promise of a green card. At the same time, I also wish to clarify that the investor immigrant category is still open and available to real investors. A hopeful immigrant should first have a full consultation with a qualified immigration attorney to explore all available immigration options and possible exceptions such as "targeted employment area", "trouble business", and "regional center" to determine one's eligibility.

The history surrounding the investor immigrant category serves as a clear illustration that fraudulent and deceitful petitions will have a consequence in the future.