There are two ways to immigrate to the United States (become a permanent resident) based upon investing in a business:
- Under the “First Preference” quota (as a manager or executive in an established multinational company)
- Under the “Fifth Preference” quota (as an entrepreneur starting a new business).
If the principal investor is approved as a permanent resident, the spouse and dependent children are automatically eligible for permanent residence.
The immigrant petition is filed with the US Citizenship and Immigration Services (USCIS) – formerly the Immigration and Naturalization Service or INS. After the immigrant petition is approved, the investor may apply for permanent residence at an American Consulate outside the United States or at an USCIS office inside the United States.
First Preference Immigrant Visa
Under the first preference immigrant visa category, the investor must own at least two companies: one company which has been doing business outside the United States for over a year and another company, located inside the United States, which also has been doing business for over a year. The United States and overseas companies must have at least 50% common ownership. Under this scenario, the US company sponsors the investor as an immigrant employee in order to hold an executive or managerial position to the US company. If the overseas company does not already have a related US company, the investor can qualify for permanent residence, by purchasing a US business that has been operating in the United States for more than one year.
The investor must be employed in executive or managerial capacity in the foreign company as well as in the US company, in order to qualify for the first preference immigrant visa. It is necessary to document the nature of the >50% common ownership between the companies with stock certificates or similar documents. Also, it is necessary to document the investor’s work history and ability to run a US business with letters of reference or business licenses, education or other documents. Finally, we must show that the two companies are engaged in substantial business operations, with copies of payroll records, tax filings, registrations, bank letters, letters of credit, and other similar items.
The advantage of the first preference immigrant visa program is that the US Citizenship and Immigration Services gives permanent residence unconditionally to first preference immigrants. That is, permanent resident status does not need to be renewed after two years, unlike the fifth preference immigrant visa program described below. Also, there is no minimum investment amount nor required number of employees. However, a US company sponsoring a first preference immigrant normally has at least five US workers and annual sales of more than $300,000, depending on the type of business.
Fifth Preference Immigrant Visa
To qualify for a fifth preference immigrant visa, the investor must have established a new US company after November 29, 1990, with a capital investment of at least $500,000 to $1 million. The investment funds may be held in escrow contingent upon approval of permanent residency. The investment must create full-time employment for at least ten US workers within two years after approval of permanent residence. Establishment of a “new US company” may be accomplished through any of the following methods:
1) the creation of an original business; or
2) the purchase of the assets of an existing business if the investor makes substantial changes in the organization or operation of the business; or
3) the expansion of an existing business and making a substantial change in the net worth or number of employees of the company.
A passive real estate investment or simple ownership of shares of stock does not qualify for fifth preference immigration. However, active participation as a member of a Board of Directors of a qualifying company in which the funds are invested will meet the requirements. Permanent residence is conditional for the first two years under the fifth preference immigrant category. Shortly before the investor’s second year of permanent residence, the investor must document that the investment was properly capitalized, the business remains viable, and that it continues to meet all other requirements. At that point, the US Citizenship and Immigration Services will grant unconditional permanent residence to the investor and dependent family members.
First or Fifth Preference Immigrant Petition
The immigrant petition is filed with USCIS. The USCIS normally will approve the immigrant petition after about 6-12 months. After the immigrant petition is approved, the investor may apply for permanent residence either through an USCIS office inside the US (a process called Adjustment of Status) or through an American Embassy outside the United States (a process called Immigrant Visa Processing).
Adjustment of Status
After the immigrant petition is approved, the investor and any dependent family members may apply for permanent residence by filing the application for Adjustment of Status with the USCIS. Each family member will need to be present in the United States in order to file for adjustment of status. After the adjustment of status is filed, the investor and each family member will be able to receive work permits and international travel permits while waiting for the approval of permanent residence. Permanent residence should be approved after about 12 months. Thus, overall processing time is about 18-24 months.
Immigrant Visa Process
After the immigrant petition is approved, the investor and any dependent family members may apply for permanent residence by starting the Immigrant Visa Process at the US Embassy overseas. After the immigrant visa application is filed, the investor and each family member will not be able to obtain visitor visas while waiting for the approval of permanent residence. Permanent residence should be approved after about six to 12 months. Thus, overall processing time is about 12-18 months.
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