By: Eduardo Ayala, Ayala Law PA

An EB-5 immigrant visa is a visa that allows you to become permanent resident if you invest 1-million dollars (or 500k in certain circumstances) and create 10-jobs for US citizens or residents. (Some other day we’ll talk about what “10-jobs” mean. Today I want to talk about how to count the 1-million amount when you have already invested money in the US). When funds have already been invested, there is a lot of confusion as to what counts and what doesn’t.

For the lay reader it might seem simple. 1-million is 1-million. However, as most things in the law, it is not simple and, 1-million might not be 1-million.

Let’s put an example to make it more graphic.

Let’s say Juan wants a green card through the 1M-investment program. Juan has been in the United States for 3-years (under another status, an E2 business visa). When he first came to the US he invested 50k. Because he is so good, he multiplied the 50k, and with only that 50k he generated another 950k in profits from his company. (unlikely but for purposes of explaining the 1M situation, it helps us).

In our example, Juan can only use the 950k generated by the business only if those 950k were distributed by his company to him as profits and he paid taxes on it. Once the money passes through to him and is taxed, then that money can count as part of the 1M investment for an EB5-green card visa. The reason (though not commonsensical from a business stand point since most business retain earnings or reinvest in the company) is that the EB-5 visa regulations talk about “foreign investor.” So the government wants the money to be “foreign” and that it comes from an “investor”—a human being. This is why they make you pass through the money before it can be counted.

In our example if we assume a tax rate for Juan of 30%, Juan would only be able to invest 665k of the 950k (Because 285k would be taxes). But this scenario is unlikely, because generally businesses have partners, and if, for instance Juan was a 50% owner, then we can only count the money that belongs to him, i.e.: 50% of the 665k or 332.5k.

EB-5 (green card) visas are complicated. It all starts simple: invest 1M and create 10-jobs. But, as seen, it is far from straight forward.For more information on investment visas call 305-570-2208 or email at eayala@ayalalawpa.com.