Jian Joe Zhou, Attorney at Law

In Part I of this article, we discussed the differences in the nature and legal requirements for the EB-1(C) and EB-5 categories. InPart II, we will explore the procedural aspects of these two investment related visas.

1. Petitioner on the Forms

The EB-1(c) I-140 is an employer-sponsored petition, meaning the qualified U.S. entity is the petitioner and the employee is the beneficiary. To file an EB-1(c) petition, the employer files the form I-140 employment-based immigrant petition.

For the EB-5, the investor must file the Petition Form I-526. For an EB-5 category petition, the individual alien investor is the petitioner, and there is no sponsoring employer.

2. Required Documents

In EB-1(c) petitions, along with the petition forms, the employer should submit a statement of the job duties for the offered managerial or executive position. The employer will also need to provide evidence of the business relationship between the U.S. petitioning entity and the foreign company. Documents needed from both the U.S. entity and the foreign affiliate include articles of incorporation or association, financial documents such as tax returns, bank statements, major business contracts, sample invoices, marketing documents, office lease, photographs of the main office, a description of the company’s organizational structure, and etc.

The alien transferee will also need to submit documentary evidence to prove that he or she is qualified to hold the offered position.

In EB-5 case, along with the petition forms, the alien investor must submit documentation to prove the investment has been made or will be made and that the capital has been lawfully gained. Evidence to prove lawful capital includes sales contracts for homes or property, bank statements, stock certificates, evidence of purchased assets, tax returns, business operations records, or other proof of income. In addition, the investor must provide evidence of the existence of the new enterprise, including business organization documents, articles of incorporation, or other authorization to do business in the U.S.

Further, the investor must provide evidence showing the creation of at least 10 jobs for U.S. workers. If the new enterprise has already hired employees, the investor can submit I-9 forms and tax records. If no employees have been hired, the investor can submit a business plan to demonstrate that 10 U.S. employees will be hired within the next two years. Investors in the “Regional Center Program” described in part one will need to provide evidence that 10 jobs have been or will be created in the target employment area along with statistical or expert evidence that the targeted employment area has high unemployment.

3. Permanent vs. Conditional Green Card

Once the EB-1(c) petition is approved, the transferee and his or her immediate family can apply to adjust status if they are already in the U.S. or can apply for an immigrant visa at a U.S. consulate abroad. Once they receive their visas and enter the U.S., or upon adjustment of status, they will receive permanent green cards, without any conditions.

However, those in the EB-5 category need to go through a conditional green card period. Once the EB-5 petition is approved, the investor may file for an immigrant visa or to adjust status. Unlike with EB-1(c), the initial permanent resident status granted to the investor is conditional for two years. The conditional green card status confers the same rights for the two years period as the permanent unconditional green card given to those with approved EB-1(c) petitions.

In order to remove the conditions on his or her green card status, the investor (and his family members) must request removal of the conditions within 90 days of the expiration of two year green card. Investors must file the Form I-829 “Petition by Entrepreneur to Remove the Conditions.” Along with the Form I-829, the investor should submit evidence that proves he or she has met all the requirements of the EB-5 category including documents demonstrating the required amount has been invested in a new enterprise and ten full-time positions for U.S. workers have been created.

The investor will remain in a valid status while the I-829 petition is pending; they are also allowed to travel during this period. If the investor fails to request removal of the conditions, his or her conditional resident status will be terminated. Once the conditions have been removed, the investor and his or her family members will receive permanent unconditional green cards.

Conclusion:

From a procedural perspective, the EB-5 green card process may take longer and involve more uncertainty as the review for removal of the condition on green card comes two years after the approval of the initial conditional green card. But EB-5 has unique features that provide options to those who do no have a business or business operational experience in U.S. by allowing them to invest through the regional center program. Also, if the investment program is stable, final approval of permanent green card is expected for the majority of EB-5 cases.

Since both EB-1(C) or EB-5 involve complicated business and legal issues, it is recommended that companies or individuals who are interested in these categories consult and seek advice from experienced attorneys from the beginning of the process to avoid unnecessary mishaps or setbacks.

*Attorney Jian Joe Zhou is the Co-managing attorney at Zhang & Associates, PC (www.hooyou.com). Joe has more than 8 years of experience in employment/business immigration and international law practice. Joe received his SJD, LLM, and MLI degrees from the University of Wisconsin Law School, and his LLB from East China University of Politics & Law. He may be reached at @hooyou.com">jzhou@hooyou.com.