USA EB-5 Immigrant Investor Visas
For those who wish to acquire permanent resident ("Green card") status, the EB-5 Immigrant Investor Program is the most efficient way to acquire such status.
Since 1990 when Congress created this program, each year, the US government allocates a substantial number of visas for individuals who wish to make a significant investment in a new commercial enterprise in the USA. Under this program, individuals, and their immediate family members can become permanent residents of the US within a short period of time.
The EB-5 comes in two different flavours: Direct Investment discussed here, and Passive Investment option involving regional development centers, which you can find out more about here.
The EB-5 Direct Investment program requires a foreign individual to invest US$ 1 million into a new commercial enterprise and create 10 new full-time jobs. Funds must stay invested and be at risk until permanent resident status is granted (usually about 4 years).
For several years now, the EB-5 program has only been renewed by Congress on an ad-hoc basis. Once again this year, there was political wrangling around the program's renewal.
Again as in past years, it has been extended until December 2016 on a temporary basis to allow Congress more time to consider the long-term future of the program.
Accordingly, if you think this program is for you, you must contact us immediately to take advantage lest the program expires before you can file.
What is EB5 program?
The U.S. EB-5 Program is an employment creation-based immigration program designed for an immigrant investor with sufficient capital resources to petition themselves and their immediate family for Permanent Residency in the United States.
For those without close family in the US, an EB-5 is among the quickest ways to get a U.S. Green Card through investment.
Upon acceptance of the USCIS I-526 application, the investor is issued a "Conditional" Green Card. After time, investment, and job requirements have been met, a "Permanent" Green Card will be issued to the investor and the investor's immediate family members. EB-5 Programs are generally low risk and provide you with a reasonable return on investment.
What types of projects attract EB-5 investment?
The EB-5 program has been used to finance a myriad of different investment projects. Some of the more common examples include the following:
- Sports stadiums
- Medical facilities
- Entertainment venues
- Convention centres
- Office buildings
The investment must be in a "new commercial enterprise" in the United States. "New" means that the investment must have been made after November 29, 1990. "Commercial" is to be distinguished from a passive, speculative investment, such as a purchase of real estate for use as a personal residence or for potential appreciation in value (as opposed to an active real estate development project).
The U.S. investment can be in any one of four forms: (1) the creation of a new business; (2) the purchase of an existing business, which is reorganized to form a new enterprise; (3) the expansion of an existing business; or (4) the saving of a failing business.
The investment must result in a 40% increase either in the net worth or the number of employees of the business. For example, if a business has a $10 million net worth and employs 50 people, the investment would qualify either if it increases net worth by $4 million or if it results in an expansion of 20 employees.
Must the investment results in the creation of employment for U.S. workers?
The investment must create full-time employment for at least 10 U.S. citizens or immigrants (permanent resident aliens and other specified immigrant categories). The required 10 positions cannot include the investor or the investor's spouse or children. The 10 jobs must be for employees of the enterprise in which the investment is made and cannot include independent contractors. However, for approved regional centres, the creation of employment can include indirect employment.
When must employment be created?
The EB-5 petition must document that the required 10 jobs will be created within a 2 year period immediately following the approval of the EB-5 petition.
May two or more investors qualify for immigration based upon a pooled investment in a single business?
There is no limit to the number of investors who may qualify for immigration based upon an investment in a single business. However, each investor must invest the required minimum amount, and the number of jobs created must be equal to ten times the number of qualifying foreign investors. For example, if five investors each invest $1 million in a business, they can each qualify for immigration if 50 jobs are created in the business
Is the EB-5 Program suitable for me?
EB-5 investors have many reasons for seeking permanent residency in the United States through the EB-5 Program. They may be seeking economic opportunity, educational opportunity for themselves or their children, or retirement in the U.S. Obtaining an EB-5 visa through the FTIDC Regional Center provides these investors with the opportunity and flexibility to live and work permanently in the U.S.
What are the risks?
EB-5 regulations require that all invested capital be "at risk" of loss. Therefore, no investment can be guaranteed - that is, without risk - if it is to qualify as an EB-5 investment. "At risk" generally means subject to normal business and financial risk. Other risks include the enterprise's failure to meet the direct or indirect job creation requirement. While no investment can be guaranteed, FTIDC investments are structured specifically to minimize these risks to the greatest extent possible. These and other risks are described in detail in the documentation provided for each FTIDC investment.
How many EB-5 visas are available?
Current U.S. law allocates 10,000 EB-5 visas per year for foreign nationals and their immediate family members (spouses and unmarried children under 21). Of these, 3,000 EB-5 visas are specifically set aside for applicants who invest through a designated Regional Center: the Passive Investment scheme.
How long will it take to receive a permanent "green card"?
The EB-5 investment process involves multiple steps, and processing times for each step can vary. Overall, the entire process from the initial application to unconditional legal permanent resident ("green card") status, usually takes 27 to 36 months.
What happens if the necessary jobs are not created?
If the necessary jobs will not be created, the investor will not be able to obtain removal of conditions on permanent residence and will lose any legal status in the U.S. If there will be a change or delay in creating the necessary jobs, it may be necessary for the investor to file a new I-526 petition and obtain a new two year period of conditional permanent residence status. It may not be necessary to do this if the investor can prove at the time of filing of the I-829 petition that all of the necessary jobs will be created within a "reasonable time."
When is it possible to apply for U.S. citizenship?
Four years and nine months after obtaining conditional permanent residence status. Applying for U.S. citizenship is optional.
After five years of legal residence from the date of receipt of Conditional Green card, it is possible to acquire US citizenship and to obtain a passport which gives the protection - but also the taxation - of the most powerful country in the world. There are four ways to acquire US citizenship: by birth in the United States or in US territories (Jus soli), by birth outside the US to US parents, and by naturalisation.
Alternatives to a Green Card May Be Preferable
However, for wealthy individuals and families, in particular from the taxation point of view, permanent resident/green card status may actually be worth avoiding. There are many different possibilities to acquire a work permit in the US which does not subject its holder to global taxation.
Possible suitable categories include for example L-1 intra-company manager executive transfers or E-1/2 treaty investor/trader visas, (E Visas can normally be renewed indefinitely). Also often a simple long-term visitors visa may be the appropriate solution if you would like to spend a certain amount of time in the USA but not become subject to worldwide taxation.
Real Estates for investors in the United States
The United States ordinarily places no restrictions on foreigners concerning the ownership, purchase or transfer of real estate, except where national security is at stake.
A foreigner's right to own, purchase, or transfer real estate may be limited, however, by various federal and state statutes that restrict the ability of a foreigner to acquire or dispose of certain real estate or to make testamentary dispositions to foreigners from countries that prohibit similar dispositions to U.S. citizens.
Also, there are numerous reporting requirements for foreign investors as well as for sellers of real estate to foreigners. The reporting requirements incorporate look-through mechanisms which make it relatively difficult to set up tiers of domestic and foreign entities in order to make the ultimate ownership of real estate by foreign persons more private. Furthermore, failures to report may be punished with severe penalties, ranging from up to 25% of the fair market value of the real estate even to imprisonment.
Estate and tax planning for U.S. real estate
The main issue with regard to tax and estate planning is represented by the U.S. estate and gift taxes, which generally apply to foreign transferors who have property located in the United States, in addition to citizens and residents of the United States. For foreigners, the gross amount subject to U.S. estate tax can be determined only by reference to property situated in the United States. In contrast, for U.S. citizens and residents, any U.S. estate and gift tax exposure is determined by reference to personal status and not to the specific location of assets.
A further issue is that a transferee of U.S. real estate from a foreign person is required to deduct and withhold 10% of the amount realised by the foreign person in the disposition.
However, these taxes may under certain circumstances be avoided by holding U.S. real estate through a U.S. company incorporated in the state in which the real estate is located, and which in turn is held by a foreign company incorporated in a suitable jurisdiction.
Avoid U.S. taxes on worldwide income
Most individuals would probably not wish to become subject to U.S. taxes on their worldwide income, and for them it is very important to observe the clear rules as to when a foreigner becomes resident for tax purposes in the U.S. Assuming adequate immigration status, up to an average of 120 days can be spent in the United States without residency status there being established for U.S. income-tax purposes.
Under the substantial presence test, a foreign citizen is treated as a U.S. resident alien if that individual is present in the United States for at least thirty-one days during the current calendar year and for a total of 183 days during the current year and the two preceding calendar years. In determining whether this 183-day requirement has been satisfied, the days are counted differently, depending on when the physical presence in the United States occurred.
Each day of presence during the current year is counted as a full day. Each day in the first preceding year counts as one-third of a day. Each day during the second preceding year counts as one-sixth of a day.
There is an important exception to this general rule, in addition to the possible applicability of a tax treaty. If a foreigner is present in the United States for fewer than 183 days in a calendar year, and has a tax home in another country and a closer connection to that country than to the United States for that calendar year, the foreigner is not considered a resident of the United States for income tax purposes for that calendar year.
This exception, known as the "Tax Home/Closer Connection Exception," defines "tax home" as the individual's principal place of business. The Tax Home/Closer Connection Exception is not available to a foreigner who has taken steps to become a lawful permanent resident of the United States. This Exception allows foreigners to reside in the US in a given year for longer than the days allowed under the "cumulative presence" test, so long as they are present in the country for less than 183 days in that year.
Advice on the acquisition of U.S. real estate
The acquisition of real estate abroad requires careful and professional planning. Every day, individual clients, as well as other law and consulting firms worldwide, rely on us for specialised advice in this area. No matter how complex your needs are, Haskew Law will be able to advise and assist you. Contact us today for individual advice and comprehensive, yet cost-effective solutions regarding the acquisition and holding of real estate in the United States.
Establishing A Trust Or Company In The USA
People often create trusts to help them manage their assets. Here’s a quickie on the basis of a trust, along with a description of common uses.
A trust is created by the grantor (that’s you). The grantor writes the rules governing how the trust is to operate, what it is to do, and how and when to do it. If the trust is revocable, you can change the rules at any time. If the trust is irrevocable, you can’t. (Each form has advantages and disadvantages, including tax implications.)
When creating the trust, you appoint a trustee, who will have the job of managing the trust and its assets. (People often appoint themselves to serve as trustee.) The trustee must follow the trust’s rules, although, some trusts let the trustee use discretion in certain matters.
After you create the trust, it receives gifts from a donor (that’s also usually you, although you might permit your trust to receive gifts from others in addition to you or instead of you). The trustee collects the gifts and invests the money in accordance with the rules of the trust. As a result, the trust will find itself with three things: principal (the money it was given, also called the corpus), interest and dividends earned on the principal (called income), and profits (if any) from increases in value enjoyed by the principal (called capital gains). The rules you’ve written for the trust will determine who gets the income, capital gains and, ultimately, the principal. The recipient is called the beneficiary.
Some trusts have lots of beneficiaries. They can be family members, friends, or charities -- anyone you want, in any combination. Some trusts give the income to certain beneficiaries, while others get the capital gains, and still, others get the corpus -- with the trust itself stating who is to get what and when (or under what conditions). It’s the trustee’s job to make sure all this happens in accordance with the provisions of the trust.
Because different trusts do different things, it’s routine for people to have more than one. In fact, having four or five trusts is not uncommon. In some cases, trusts are even created by other trusts or in a will!
Is a trust right for you? Your answers to these questions can help you decide.
- Are you worth more than $5 million? If yes, read about the Bypass Trust.
- Are you concerned about a family member who has a disability that limits his or her ability in any way? If yes, read about the Special Needs Trust.
- Do you fret that your heirs might squander the money you leave to them? If yes, read about the Spendthrift Trust.
- Do you own a lot of life insurance? If yes, then read about the Life Insurance Trust.
- Would you like a charity to receive a substantial amount of money upon your death? If yes, read about the Charitable Remainder Trust.
- Do you have children and expect your spouse to remarry after you die? Then read about the Qualified Terminal Interest Property (QTIP) Trust.
- Do you want to make certain that your assets are used for your benefit even if you are unable to manage them yourself? Do you want your assets to go directly to your heirs, avoiding the costs, delay, and publicity of probate? If so, read about the Living Trust.
- Do you want the bulk of your assets to go directly to your grandchildren? If yes, then read about the Generation-Skipping Trust.
Also called the credit shelter trust, marital trust, and family trust, this trust is designed to help a married couple avoid estate taxes. Each person may pass to heirs a certain amount of money at death with no estate tax. The bypass trust can increase this. Because tax laws vary year to year, contact us to make sure you have current information.
Special needs trusts
This trust provides financial support to a person who is disabled and unable to earn sufficient income to support him- or herself. To avoid the risk of interfering with the support that’s otherwise available from social services, this trust’s assets typically cannot be used for housing, clothing, or food.
Instead of leaving an heir a bucket of money that he or she may quickly squander, you place that inheritance into this trust. The trust would then distribute the inheritance to the heir later, perhaps when the heir reaches a certain age, or in the form of an allowance, or for specific expenses, such as college or medical expenses.
Life insurance trusts
For high net-worth individuals, owning their own life insurance is a big mistake -- because the death benefit is subject to estate taxes. To solve this problem, have a life insurance trust own your policy. Instead of paying for the insurance yourself, you’d give that money to the trust, which would pay the premium for you. The trust would be the beneficiary, and your heirs would be the beneficiaries of the trust. An additional benefit of a life insurance trust: Instead of beneficiaries automatically getting the insurance proceeds immediately upon your death, you can instruct the trustee to distribute the money to the heirs more slowly (see Spendthrift Trust above).
Charitable remainder trusts
If you plan to donate assets to a charity after your death, you may find it beneficial, instead, to donate to a CRT now. By doing so, you get a tax deduction right now for your gift. You also can name yourself as the income beneficiary (giving yourself an annual income) and the charity gets what’s left after your death, tax free -- just as you’ve intended. If you’re concerned that making the gift to the CRT denies your children their inheritance, you can buy a life insurance policy equal to the size of your gift, naming your children as beneficiaries of the insurance, using some of the trust’s income to pay the policy’s premiums (see Insurance Trust above).
Say you die leaving a spouse, minor children, and assets. Further say your spouse remarries, then dies. Result: Your spouse’s new spouse gets all your money, and your children are left with nothing. (We’ve seen this happen too many times.) To avoid this scenario, consider the Qualified Terminal Interest Property Trust. Instead of leaving your assets to your spouse when you die, you leave your assets to the QTIP trust. The trust gives income to your surviving spouse for his or her lifetime. But when your spouse dies, the assets remain in the trust for the benefit of your children. Because your spouse doesn’t directly own the assets, he or she can’t convey them to a new spouse and his or her own heirs.
This tool is designed to pass your assets to heirs without going through probate. Also, it can help ensure that your assets will be used for your benefit and welfare if you become unable to manage your own affairs.
Such trusts, intended for truly wealthy estates, can preserve your assets for several generations while avoiding estate taxes. You can fund a GST with the same amount as the bypass trust for the benefit of your grandchildren and great-grandchildren, and the assets will appreciate free of income and estate taxes. Such assets can also be protected from creditors.
Neither US citizenship nor residency are requirements for forming a Delaware LLC or Delaware corporation. You can start a business in Delaware from anywhere in the world.
In fact, many of our clients are not living in America.
We do not charge foreigners more money for filings, however, we would encourage you to review our resources section to make the whole process easier for you, specifically checking our Delaware LLC and Delaware Corporation pages.
Steps to Starting a Non-U.S. LLC or Corporation
Here we focus on establishing a company in Delaware as this has many advantages over other states in the USA.
In Delaware, an LLC or Corporation is formed with the Delaware Division of Corporations. That will be referred to as your “domestic state.” Your business will be considered a “foreign entity” in states outside your domestic state (America has 50 different states and a couple extra jurisdictions).
The process for starting a business in Delaware is nearly the same process that a US citizen would go through:
Name the Company
Find a name for your business by performing a name search on the Division of Corporation’s website. Once you’ve found an available name, you are NOT required to reserve it. The name will automatically belong to your business entity once Delaware has recorded your company’s LLC or corporation filing.
Hire a Delaware Registered Agent
Delaware registered agents receive all official mail and service of process on behalf of your Delaware company. You must maintain a Delaware registered agent, which is what we do for $45 a year, to keep the Delaware company in good standing. They are required by law and must maintain a physical address and keep regular business hours in the state, which, since you do not live in the United States, are requirements you cannot meet. This is a necessary expense and you’ll need the registered agent’s name and address to complete the formation paperwork in the next step. You could try to list a relative or friend as your registered agent, but doing so might involve this person into your personal business notifications and put an unneeded burden on them to legally accept your legal documents.
File Certificate of Incorporation or Certificate of Organisation
The name of the formation document will depend on what type of entity you are forming. Certificates of Incorporation are for corporations. Certificates of Organisation are for Limited Liability Companies (LLCs). There are two ways to file these documents with the Delaware Division of Corporations: by mail or by fax. Delaware does not offer online filings, although you can sign up with us online and we’ll file your Delaware LLC or corporation for you.
Many foreigners choose a corporation because it aligns better with your home country’s rules and regulations. Also, it defaults to a C corporation which is how you’ll have to pay your taxes to the IRS should you owe IRS taxes on income you derive from the U.S.
Obtain an EIN
In order to file and pay taxes in the United States, your Delaware company will need to obtain Employer Identification number (EIN). After the state sends verification that your articles of organisation (for Delaware LLCs) or articles of incorporation (for Delaware corporations) have been processed, you can apply for an EIN by filing Form SS-4 with the Internal Revenue Service (IRS). The IRS accepts EIN applications online, by phone, or by mail. The form is one page and comes with plenty of instructions.
Differences between a Delaware LLC and a Delaware Corporation
If you choose a Delaware LLC, your ownership of the company is in the form of membership interests. The members are the owners of the Delaware LLC.
If you choose a Delaware corporation, your ownership of the company is in the form of shareholder stocks. These stock certificates do not need to be physically made. They can just be documented on paper as to how many each shareholder owns. The shareholders elect the directors of the corporation. The directors elect the officers such as president, treasurer, and secretary of the corporation. If you are doing a Delaware corporation, we ask you for all this information, and as the incorporator, we elect the directors and officers on your behalf, and you sign the corporate bylaws as the shareholders.
In order to keep your business entity active, you will need to file an annual report and pay a franchise tax to the Delaware Division of Corporations if you operate a corporation; LLCs only need to pay an annual tax of $300. Annual reports and Delaware Corporate Franchise Taxes (a minimum of $175) are due each year by March 1; the LLC tax of $300 is due each year by June 1.
Opening a bank account
One of the most commonly asked questions about forming a business in the United States from abroad is how to open a business bank account. Opening a U.S. bank account is difficult if you are not here. Most people that go to that much effort actually have to fly into the U.S. and physically walk into a branch. We recommend Wilmington Trust, HSBC, Wells Fargo, U.S. Bank, Chase, or Citibank. Wells Fargo banks in Las Vegas are particularly versed in setting up bank accounts for non-U.S. residents. A business bank account in the U.S. does not need to be “Started” in the state of your formation. We do not assist in setting up U.S. bank accounts. Frankly, no one can really help you do that very well. You will have all the legal documents relating to the formation of your Delaware company that you will need to set up a bank account, in your online account, at all times.
Business owners also run into trouble trying to open an account in their own country for a foreign business. If your country is part of the Hague Convention, you will need an apostille (official certification of your business formation documents).
Paying US taxes as a Nonresident
Non-US citizens cannot be shareholders in an S corp, so this limits your taxable business entity choices. Mostly, non-US residents will choose between LLCs and corporations taxed as C-corps.
If you form a corporation in Delaware, your corporation will be taxed as like any other US corporation. The corporation will pay the same taxes that any other US corporation would on all US-sourced income and your Delaware corporation will also be taxed on all foreign earnings, in accordance with US Treasury regulations. Since the corporation was formed in the United States, it is taxed as a domestic corporation and you will file Form 1120.
As a non-US resident, your Delaware LLC will only be taxed in the US on income from US sources, meaning that income from other countries will not be taxed by the US. If you choose to form an LLC, any profits US-sourced income will be taxed at 30%. This 30% goes to the IRS. At the end of the year, you will file your US taxes on Form 1040-NR with the actual amount due. If the amount due is less than the 30% initially taxed, the IRS will issue a refund in the amount overpaid. To make sure the LLC is sending the proper amount to the IRS, the LLC must designate a tax withholding agent to calculate the proper amount that must be sent to the IRS before any of the money is released. Because of these difficulties, many non-US residents choose to form corporations, unless they are forming the LLC to do business strictly outside of the US, in which case, the LLC would not owe any US taxes.
Helpful Tips for US Non-residents Starting a Business in Delaware
- With a Delaware LLC or Delaware corporation, you only need one person. There is no need for multiple people.
- There is no need to pay a company a high fee for nominee service.
- You get a federal tax ID yourself, or you can hire us to do it for you at the bottom of our sign up form.
- If you need an apostille, you can add that at the bottom of our sign up form.
- Most people do NOT need a corporate book and seal. If you ask us, it’s a waste of your money.
Emigrate to USA EB-5 Investor visas
Name: EB5 Investor Visas Available
Description: The USA is a fantastic destination and with their revised tax policy it is now an excellent destination for investors. For a moderate investment the USA offers investor visas to those who want to settle. There are few down sides to investing in the USA. We expect the USA to now become the worlds top destination for international investors.