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Permanent Residence Based On Employment Creation/Investment


Ten Thousand (10,000) Immigrant or Permanent Resident Visas are available annually to qualified investors/entrepreneurs who establish and participate in a new commercial enterprise in which they have invested, or are actively in the process of investing, $1 million (or at least $500,000 in a "targeted area"). In addition, the investment must create full-time employment for 10 U.S. workers (other than the investor and the investor's spouse, sons or daughters). The Permanent Resident Status is conditional, meaning that two years after acquiring resident status, the investor must undergo a reexamination by the U.S. immigration authorities who will decide whether the investor may retain resident status.

Who Qualifies — Key Concepts:


The contribution of capital invested or to be invested must be placed at risk for purposes of generating a return. No investment occurs for purposes of this Visa category if the capital is offered in exchange for a note, bond, convertible debt, obligation or any other debt arrangement between the investor and the enterprise invested in. A mere intent to invest or a prospective investment arrangement entailing no present commitment does not establish an acceptable investment. The capital may come from abroad or the U.S.


Included in the notion of capital are: cash; equipment; inventory; other tangible property; cash equivalents (e.g., certificates of deposit, treasury bonds, and other readily convertible instruments); and indebtedness. To qualify as capital, indebtedness must be secured by assets owned by the investor, and the investor must be personally and primarily liable for the debt. Assets of the new commercial enterprise may not be used to secure any of the indebtedness.

Amount of Capital

In rural and high unemployment areas (known as "targeted" areas), an investment of $500,000 is sufficient; in all other areas the capital investment must be $1 million.

Commercial Enterprise

Included are sole proprietorships, partnerships (limited and general), joint ventures, corporations, business trusts, holding companies, and wholly owned subsidiaries of holding companies. Not-for-profit entities are excluded.

Establishing a New Commercial Enterprise

There are three ways to meet this requirement:
  1. create an original (new) business;
  2. purchase an existing business and restructure or reorganize it into a new commercial enterprise; or
  3. expand an existing business (without bringing into existence a new commercial enterprise) so as to cause a substantial change.
Substantial change means a 40 percent increase either in net worth or in the number of employees so that the new net worth or number of employees is at least 140 percent of the business' pre-expansion net worth or employee number. Under this third option, the investor also must comply with the capital ($1 million or $500,000) and employment creation (10 full-time jobs) requirements.

Employment Creation

To qualify as an employee, the person must be directly employed in full-time capacity by the new enterprise. Independent contractors are excluded from the meaning of employee. Also excluded are part-time positions, though job sharing (e.g., one position shared by more than one employee) is acceptable.

Retention of existing jobs may amount to employment creation if the required level of capital is invested in a troubled business. Using job retention to satisfy the employment creation standard is permissible if the investor is maintaining or will maintain the number of existing employees of the troubled business at no less than the pre-investment level for a period of two years.

Troubled Business

As noted above, entrepreneurs may invest in a troubled business. A troubled business is one which: (1) has been in existence for at least two years; (2) has incurred a net loss for accounting purposes (based on Generally Accepted Accounting Principles) during the preceding 12- or 24- month period; and (3) suffered a loss for this period which is at least equal to 20 percent of the troubled business' net worth prior to such loss.

Multiple Investors

Multiple investors are acceptable, and jobs created as a result of a new enterprises established by multiple investors may be allocated among the investors (some of whom may not be seeking U.S. Resident Status) in any reasonable manner. However, if more than one investor is seeking Resident Status, each investor must meet the capital investment and employment creation conditions.

Engaged in Management

The investor must participate either in the day-to-day management of the new enterprise or in policy formulation (e.g., as a member of the Board of Directors). Purely passive investment is not permitted. Special rules exist for limited partnerships.

An investor must file a petition with the Citizenship and Immigration Service(CIS) to establish that he or she is entitle to classification as an employment creation investor/entrepreneur.

If the petition is GRANTED and the foreign national is abroad, the CIS will notify the designated U.S. Consulate of the petition's approval. The foreign national may then apply for an Emmigrant Visa at the U.S. Consulate. Note: An application for an Immigrant Visa requires submission of biographic information, collection of personal documents (Birth, Marriage, etc.) and passage of a medical examination. While the length of time required to complete the application process varies from U.S. Consulate to Consulate, four to five months' delay is not uncommon.

If the foreign national is lawfully in the U.S., (in most cases) he or she may apply to adjust their status by filing an Application with the local CIS office. Again, the time necessary to make a decision fluctuates from CIS office to office.

Spouses and Children

The spouse and unmarried minor sons and daughters (i.e., under 21 years of age) may be included with the principal investor's Application for Permanent Resident Status. Inherent in a grant of Permanent Residence is unrestricted work permission.

Removal of Condition

The resident status which the investor (and his or her family) receives is conditional for two years. Just prior to the second anniversary of the Approval of Permanent Residence, the investor must apply for Removal of the Conditional Status. At the condition removal stage, the CIS determines whether or not the investor has complied with the job creation and capital investment requirements. If the CIS is satisfied, the CIS removes the condition and the investor and his or her family become Unconditional Permanent Residents. If the CIS is not satisfied, it may rescind the Conditional Resident Status and ask the investor (and family) to leave the U.S. 

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