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Category Archives: US start up visa program

July 25, 2022

Understanding Investing in EB-5  and different financial structures?

The pathway to USA Green Card by investment, also popularly known as the EB-5 investment visa program, is considered the easiest and safest way to obtain a Green Card. The law behind the EB-5 investor program is very simple but the creative financial structures set up by investors and related professionals make investing in EB-5 look like a very complex process.

The simple EB-5 law

  1. An EB-5 investor may make an investment of US$ 800,000 in a new commercial enterprise / new business which will create 10 new jobs provided the business is located in a rural area or high unemployment area or the project is an infrastructure project. In all other cases, the investment amount shall be US$ 1,050,000.
  2. The investment should be a business risk.
  3. The investment amount should come from a legitimate source, including earned money or a loan, or a gift.

This simple EB-5 regulation has been converted into complex financial structures, making the investment process seem very complicated for investors.

Here are the direct and indirect EB-5 investment scenarios:

Direct Investment

An investor can start on his own or partner with someone in the USA for a new business located anywhere in the USA, make an investment of US$ 1,050,000 and create 10 jobs. The investor will then qualify for a visa under the EB5 program. If this business is located in a rural area or high unemployment area, the investment amount will be US$ 800,000.

Investors who are capable of operating and managing a business may opt for this type of direct investment.

Indirect investment

In this case, several geographical areas in the USA may be combined and approval from USCIS is obtained to declare the area as a Regional Centre.

It is under this type of indirect investment, various financial structures are offered to investors for making an investment.

Here are some simple examples:

EB-5 Equity investments

A developer in the USA approaches USCIS to receive permission to declare a certain geographical area of the USA as a regional center. The developer then starts his project in this area and uses the EB-5 program to raise funds. The project will also be financed by a bank loan and the developer’s equity in the regional center as well.

In this type of project, the developer invites investors to make an investment as equity or as preferred equity partners.

Very few developers in the USA use this model. In such cases, there is one project and one developer.

EB-5 Debt model 

A company raising funds for a business or project in the USA may approach USCIS to receive permission to declare a certain geographical area of the USA as a regional center.

Once the area is declared a regional center, the company may approach developers or businesses to set up a project there.

Rather than making a direct investment in the project company, in this case, a second company is created in which EB-5 investors make an investment as equity partners. This company then gives a loan to the project company to carry forward the project. Hence this is known as the Debt model.

This is the most popular model for EB-5 investment.

It is interesting to note that US companies assisting to raise funds for US developers or businesses also undertake marketing for EB-5 projects outside of the USA to attract EB-5 investors.

In this case, too there is one project and one developer but there is also an intermediary company, such as a fundraising company and/or EB-5 marketing company.

EB-5 Fund / Mutual Fund model

A company raising funds for a business or project in the USA may approach USCIS to receive permission to declare a certain geographical area of the USA as a regional center or the company may rent a regional center from another company who has already received approval from USCIS for a regional center.

Once the area is declared a regional center, the company may approach several developers or businesses to set up a project there.

The EB-5 fund may be created for just one project or business or several projects or businesses in a regional center.

Using EB-5 funds for several projects reduces the risk by diversifying the portfolio as in the case of regular mutual funds in financial markets.

This model is used by very few companies in the USA.

To protect EB-5 investors, the US government has introduced the new EB-5 Reform and Integrity Act. Thanks to this new regulation, we may see a major shift in the EB-5 marketplace. Many companies marketing EB-5 projects or raising funds or renting regional centers may face financial viability issues due to a long list of compliance requirements.

Depending on your personal aptitude, investors may decide to invest in EB-5 to receive a USA green card.

Legal disclaimer:

This blog is written in a very simplified manner for the purpose of making investors understand the various models related to EB-5 investment. Investors are advised to consult a qualified US immigration lawyer before making any decision regarding an EB-5 investment.

For Indian investors – Investing in an EB-5 visa from India is a legal matter and as per Indian law, only Indian lawyers having expertise in the EB-5 program must be consulted. 

June 1, 2021

By removing the Trump administration proposal that aimed to kill the initiative, the Biden administration wants to resurrect an immigration program that allows foreign entrepreneurs to operate in the United States.

The International Entrepreneur law, which was then proposed by President Barack Obama’s administration three days before he left office in 2017, enables foreign entrepreneurs to work in the United States for up to five years if their start-ups can raise at least $250,000 from the venture capital in the United States, recruit ten employees, or meet other criteria.

As part of its attempts to revive the program, the Biden administration intends to market it. These actions are in response to demands from venture capital firms, which want the administration to support a program that would encourage thousands of foreign start-up founders to relocate to or stay in the United States to expand their ventures.

The Biden Administration is unlocking an enormous job growth opportunity by incorporating the International Entrepreneur Rule, which will help the United States remain the global leader in innovation,” said Bobby Franklin, the group’s president and chief executive.

“Immigrants in the United States have a long history of entrepreneurship, hard work, and creativity, and their contributions to this nation are incredibly valuable,” said Acting U.S. Citizenship and Immigration Services Director Tracy Renaud.

Currently, there is no visa available for start-up founders in the United States, despite the widespread bipartisan support for the concept. Other visa types must be used for foreign entrepreneurs, but none are ideal.

Between 2017 and 2019, USCIS received only 30 applications for the program, with only one being accepted, according to a USCIS official.

According to USCIS, if the program is properly implemented, about 3,000 international entrepreneurs would qualify per year, resulting in the creation of about 100,000 jobs over a ten-year period.

This article is contributed by Ms. Dishita Sheth, Intern at Ajmera Law Group 

May 26, 2021

In order to apply under the Start-Up Visa Program of the U.S., start-up founders need to meet the following requirements:

  1. Founder(s) must show themselves as entrepreneurs with a Qualifying Start-up Entity.

Evidence and supporting documents that are filed with the petition must demonstrate that –

(1) The founder(s) have a central and active role to play in the operations of a start-up entity, such that they are well-positioned, due to their knowledge, skills, or experience, to substantially assist the U.S. start-up entity with the growth and success of its business;

(2) Possess at least a 10% ownership stake in the U.S. start-up entity, and that the entity:

(a) Was recently formed (for example, created within the five years immediately preceding the filing of the petition) and has been lawfully doing business within the United States during any period of operation since its date of formation; and

(b) Has substantial potential for rapid growth and job creation, evidenced by the receipt of significant capital investment, grants, or awards.

  1. Substantial Investment, Grant, or Award.

Founders may be considered for entrepreneur parole if they demonstrate that their start-up entity has received a minimum investment amount or qualified award or grant as described below:

(1) The start-up entity has received a qualified investment, within 18 months immediately preceding the filing of the petition, of at least $250,000 US from one or more qualified investors;

(2) The start-up entity has received, within 18 months immediately preceding the filing of the petition, an amount of $100,000 US or more through one or more qualified government awards or grants; or

(3) If the start-up entity partially meets one or more of the above criteria, founders may still be considered for entrepreneur parole by providing other reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.

A lesser amount can be considered on a case-by-case basis if it can be shown that it is substantial.

  1. The investment must be from a ‘Qualified Investor’.

The term ‘qualified investor’ for purpose of entrepreneur parole means an individual who is a U.S. citizen or lawful permanent resident of the United States, or an organization that is located in the United States and operates through a legal entity organized under the laws of the United States or any state, that is majority-owned and controlled, directly and indirectly, by U.S. citizens or lawful permanent residents of the United States, provided such individual or organization regularly makes substantial investments in start-up entities that subsequently exhibit substantial growth in terms of revenue generation or job creation.

Such an individual or organization may be considered a ‘qualified investor’ if, during the preceding five years:

(1) The individual or organization has made investments in start-up entities in exchange for convertible debt or another security convertible into equity commonly used in financing transactions within their respective industries comprising a total in such 5-year period of no less than $600,000 US; and

(2) Subsequent to such investment by such individual or organization, at least 2 such entities have each created at least 5 qualified jobs or generated at least $500,000 US in revenue with average annualized revenue growth of at least 20%.

  1. Additional Supporting Evidence.

Additional supporting evidence concerning the start-up entity’s business, its substantial potential for rapid growth and job creation as well as the founders’ day-to-day role in the business has to be submitted.

If the start-up entity partially meets the qualified investment, government grant, or award criteria, founders may be still considered for parole by providing other reliable and compelling evidence that the start-up entity has substantial potential for rapid growth and job creation.

Such supporting evidence may include, but is not limited to, the following:

(a) Evidence of rapid growth, such as – number of users or customers, revenue generated by the start-up entity, additional investments/fundraising, including crowdfunding platforms

(b) Social impact of the start-up entity

(c) National scope of the start-up entity

(d) Positive effects on the start-up entity’s locality or region

(e) Any other reliable and compelling evidence that the start-up entity has substantial potential for rapid growth and job creation.

December 21, 2017

 

USA government to accept Applications under the International Entrepreneur Rule :

UPDATE 10TH MAY 2021:

  • THIS RULE WAS SUSPENDED BY THE TRUMP ADMINISTRATION BUT REOPNE BY BIDAN ADMINISTRATION.
  • See latest WSJ article – click here

ORIGINAL BLOG OF 2017: 

On 14th December US Immigration department announced that US government will accept the application under the International Entrepreneur Rule –commonly known as Start Up Visa.

These rules were made during the  President Obama Administration and date decided was July 17, 2017. However the rules could not take effect as Department of Homeland Security issued the final Rules only on July 11, 2017 and hence rules were delayed till March 14, 2018.

However, a court case was filed against the delay of the Rules and hence now the Government has been asked to accept the application with immediate effect.

Under this rules there is an unlimited number of the application can be accepted from international entrepreneur to enter the USA, use American investment and grow their Start Up business in USA.

This rules are discretionary and will be decided by Homeland security on a case by case basis for urgent humanitarian reasons or significant public benefit.

This Rules allow  the Start Up founder to come  on a temporary visa basis and does not convert to Citizenship of USA.

Under this final rule, founder of the start up will be eligible to work only for their start-up business. The spouses and children of the foreign entrepreneur may also be eligible for visa as well. The spouse can apply fort work permit once they are USA. Children are not entitle to work permit. These visa is used for a period of three years.

Eligibility

Entrepreneurs applying for parole under this rule must demonstrate that they:

  • Possess a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.
  • Have a central and active role in the start-up entity such that they are well-positioned to substantially assist with the growth and success of the business.
  • Will provide a significant public benefit to the United States based on their role as an entrepreneur of the start-up entity by showing that:
    • The start-up entity has received a significant investment of capital ( US$ 250,00 and above) from certain qualified U.S. investors with established records of successful investments;
    • The start-up entity has received significant awards or grants of (US$ 100,000 and above) for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or
      • They partially meet either or both of the previous two requirements and provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
    • THIS RULE WAS SUSPENDED BY THE TRUMP ADMINISTRATION BUT REOPNE BY BIDAN ADMINISTRATION.
    • https://www.wsj.com/articles/foreign-entrepreneurs-to-gain-more-access-to-immigration-program-11620647100