Under the 1990 Immigration Act, Congress has set aside up to 10,000 visas per year for alien investors in new commercial enterprises who create employment for ten individuals. There are two groups of investors under the program — those who invest in “targeted employment areas” (rural areas or areas experiencing high unemployment of at least 150% of the national average rate) and those who invest anywhere else. No fewer than 3,000 of the annual allotment of visas must go to targeted employment areas.
Basic Requirements for Obtaining Investor Visa
The investor must invest or be actively in the process of investing at least million in the enterprise (0,000 if the enterprise is in a targeted investment area).
- The INS defines “invest” to include the contribution of capital in the form of equity or long-term debt financing. Note, however, that a debt financing arrangement between the alien and the new commercial enterprise in which the alien is acting solely as a creditor does not constitute a contribution of capital. Capital includes cash, cash equivalents, equipment, inventory, other tangible property, and indebtedness secured by assets owned by the alien.
The enterprise must benefit the U.S. economy and must create full-time employment for not less than ten U.S. workers.
- U.S. workers include citizens, permanent residents and other immigrants lawfully permitted to work in the U.S. but it does not include immediate family members of the alien investor.
The investment must be in a “new commercial enterprise” or a “troubled business.”
- The enterprise in which the investment is made must have been established after November 29, 1990 or be in a business that has been in existence for at least two years and has incurred a net loss of at least 20% of the company’s net worth and the investment will help save jobs. Ten jobs need not be created for a troubled business. Rather, one must show that the number of existing employees is or will be maintained at the pre-investment level.
The investor must be engaged in the management of the enterprise, either through day-to-day managerial control or through policy formulation.
- The rules permit the investor to meet this requirement by evidence that the investor is a corporate officer or holds a seat on the board of directors or is engaged in other policy making activities. Maintaining a “purely passive role” toward the investment is not permitted under the INS rules.
More than one investor may obtain immigration status through the same investment enterprise.
- Multiple investors may obtain visas as long as each investor meets the million capitalization requirement and 10 full-time jobs are created for each investor. Also, an investor may obtain immigration status from the investment even if he or she is not the only investor and the other investor are not seeking to obtain immigration status.
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