Employment Based Immigration

While there is no Labor Certification for this category, there are several other requirements that must be in place to apply for a Form I-526, "Immigrant Petition by Alien Entrepreneur." These can be summarized as follows:

• The investment must be in a "targeted employment area";
• The business must hire a specific number of employees;
• The business must be a specific type of business; and
• The investment must be at least one million dollars.

Here again, this discussion does not examine all of the potential exceptions, limitations and special circumstances that may be approved by the INS for a business to be started by an immigrant seeking an Immigrant Visa. The objective of this analysis is to provide a general review of each of the requirements. If you believe this Immigrant Visa category is a viable opportunity for you, you should carefully consider retaining the services of both an expert immigration lawyer and a business/corporations lawyer, as both will be needed in the initial phases of the application for the Visa and the start-up of the business.

The most notable requirement is that an immigrant entrepreneur must invest in a "targeted employment area." A "targeted employment area" is defined as being located:

• In a city/town of less than 20,000 inhabitants;
• Outside the boundaries of such a city/town; or
• In any place meeting the government specified definition of "high unemployment."

Another requirement to qualify as an entrepreneur in this Fifth Employment-Based Preference is that the entrepreneur must hire at least ten employees. These employees can be either US citizens or immigrant aliens with Green Cards or employment authorization, but cannot be independent contractors. There is an additional requirement that these employees must work a set number of hours [35] each week.

There are also specifications on the investment or business of the entrepreneur. These include:

• Must be a manufacturing or service business;
• Must be a business that actually requires the entrepreneur's services, skills or labor to make the business work and/or grow; and
• The investment must be at least one million dollars, which may be in cash, capital, loans, property or other such assets.

To summarize, the INS will grant an Immigrant Visa in this Fifth Employment-Based Preference, but it will direct much of the location and direction of the business, and the business must be real and employ a minimum number of employees. Thus, you will likely need all of the Business and Marketing Plan tools that most businesses require when they start-up or grow their operations. An example of what will not be permitted, in most instances, is a wealthy investor who simply buys a million dollars of stock in existing US companies, unless that investor is ready to actually "go to work" for those companies.

A further restriction is that the money invested must be derived from lawful sources. Obviously, this is to prevent the illicit monies from drugs and other illegal trades from being used to finance businesses in the US and enable those involved in criminal activity to enter the US on an entrepreneur Employment-Based Preference Visa.

While this area is the subject of much legal analysis and should be analyzed by an attorney or team of attorneys for anyone contemplating entry under this Visa, there are a few basic additional rules, specifically regarding the documentation required by the INS with your Form I-526 Application. These include:

• Articles of incorporation of the business;
• Agreements regarding the partnership or business structure;
• Proof of transfer of capital to the business;
• Payroll records and personnel records;
• Bank statements, shareholders agreements, and management agreements;
• Foreign business registration records;
• Proof of targeted area compliance;
• Proof that no judgments or civil or criminal proceedings exist against the business or the entrepreneur; and
• Related documentation of corporation and operation records.

This list is only illustrative, and the INS will be thorough in most cases regarding ensuring against approving a Visa in a "sham transaction." It is best to retain professionals in this area at the outset to advise you on all types of issues, before mistakes occur in set-up, corporate structure, agreements or related issues that would dictate non-approval by the INS.

Additionally, there is a huge penalty for fraud in this area, including civil and criminal penalties and jail time in the US. In addition to these, any such fraud will likely be considered by the INS in any Petition to enter the US in a different manner.

Revocation of a Petition Based on Any of the Employment-Based Preferences

Employment Based Immigration

1  2  3  4  5  6  7  8  9

Sections Available in Immigration

Family Based Immigration Employment Based Immigration Non-Immigrant Visas