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EB-5 Investment Visa and Recent related AAO decision


The fifth employment based preference (EB5) category is designed specifically for Employment Creation.. To qualify, a foreign national must invest between $500,000 and $1,000,000.00 depending upon the employment rate in a specific geographical location. The national must invest in a commercial enterprise in the U.S. that will create at least 10 new jobs for U.S. citizens, lawful permanent residents, or other lawful immigrants, not including the investor and his/her family. Accordingly, the regulation at 8 C.F.R. §204.6(j) states that to show that the petitioner has invested or is actively in the process of investing the required amount of capital, the petition must be accompanied by evidence that the petitioner has placed the required amount of capital at risk for the purpose of prospective investment arrangement entailing no present commitment, will not suffice to show that the petitioner is actively in the process of investing. The alien must show actual commitment of the required amount of capital. Regulations define Capital as cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. Additionally, the regulations define Invest as to contribute capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the alien entrepreneur and the new commercial enterprise does not constitute a contribution of capital for the purposes of this part.

The Administrative Appeals Office (AAO) recently dismissed an appeal in which the petitioner sought classification as an alien entrepreneur pursuant to section 203(b)(5) of the Immigration and Nationality Act. The director of the Texas Service Center initially denied the petition because the petitioner failed to demonstrate a qualifying investment of lawfully obtained funds, and this appeal followed.  


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