As part of the Immigration Act of 1990, Congress created the immigrant investor visa category for foreign nationals who seek to enter the United States for the purpose of engaging in a new business venture. In order to establish eligibility for this visa, the foreign national must invest $1,000,000.00 in a commercial enterprise which will create ten full-time jobs for persons authorized to work in the U.S.

Although the million dollar figure may initially deter many investors, it is important to remember that this amount does not need to be immediately invested in the enterprise. Instead, the investment can be made over a two year period. In addition, if the new commercial enterprise is located in a rural area or area of high unemployment, the entrepreneur will qualify for the visa with an investment of $500,000.00.

Similarly, the enterprise does not have to employ ten full-time workers at the time the visa is granted. Instead, the employment positions must be created within two years. In addition, if the enterprise is located in a specially designated regional center under the Immigrant Investor Pilot Program, an entrepreneur can qualify for this visa by demonstrating that his/her investment will create ten new jobs directly or indirectly. In order to count toward the requisite ten positions, the investor will need to demonstrate that the indirect positions were a result of local economic growth created by the new commercial enterprise.

A center can apply to the Assistant Commissioner for Adjudications of the Immigration and Naturalization Service to qualify as an Immigrant Investor Pilot Program regional center. Currently, regions of Arizona, Colorado, Georgia, Hawaii, Louisiana, Massachusetts, Michigan, Nevada, New York, South Carolina, Texas, and Washington are designated regional centers.

Eligibility Requirements

To qualify for the immigrant investor visa, the foreign national must establish the following elements:

• The entrepreneur established or is establishing a new commercial enterprise. This element may be demonstrated by providing articles of incorporation, a certificate of merger or consolidation, a partnership agreement, a local business license, and/or evidence that, since November 29, 1990, the required amount of capital has been transferred to the enterprise.
  
• The entrepreneur has invested or is actively in the process of investing the required amount of capital. It is crucial to document that the capital is "at risk." Note: On January 22, 1997, the State Department issued a cable advising that consular officers examine three features when determining whether investment funds are "at risk." First, the officer should ensure that, if the capital consists of a promissory note, the entrepreneur cannot exercise a sell option until the note is paid in full. Second, the capital will not be considered at risk if it is used to make payments on such a promissory note. Third, investments using trust funds can only be counted toward the requisite capital amount if they are fully available to the new commercial enterprise.
  
• Investment capital has been obtained through lawful means.
  
• Ten full-time qualifying employees have been hired to work at the new commercial enterprise. Alternatively, the investor can provide a comprehensive business plan showing that the enterprise will need to hire at least ten qualifying employees within the next two years.
  
• The entrepreneur will be an active investment partner in the enterprise. The investor should be involved in the management of the commercial enterprise, either through day-to-day managerial control or through policy formulation (such as serving on a board of directors). Multiple investors may establish a single commercial enterprise and obtain immigrant visas on the basis of this investment as long as each entrepreneur invests the requisite amount and each investment results in the creation of at least ten full-time positions for qualifying employees.

Conditional Status

Once a petition is approved, the immigrant investor and his/her spouse and children are granted conditional residence for a period of two years. 90 days prior to the second anniversary of obtaining such status, the investor should file for removal of the conditions.

In order to remove the conditions, the foreign national must show that:

• commercial enterprise was established by the foreign national;
  
• the foreign national invested or was actively in the process of investing the requisite capital; and
  
• the foreign national sustained the investment and the commercial enterprise throughout the period of conditional residence.

If the Immigration and Naturalization Service is satisfied that the investor meets these requirements, the conditions will be removed and the investor and his/her immediate family will be granted lawful permanent residence.