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Entrepreneur & Investor's Visa

You can find below very important information if you are considering to apply under this category.

Required Amount of Investment 

The amount of capital necessary to make a qualifying investment in a commercial enterprise varies depending on where the commercial enterprise is located and the unemployment rate in the geographic area. The amount of capital necessary to make a qualifying investment in most areas is one million U.S. dollars ($1,000,000). This includes metropolitan areas, which at the time of investment has an unemployment rate significantly below the national average unemployment rates. These areas are called "high employment areas." The amount of capital necessary to make a qualifying investment in a rural area, or an area which has experienced unemployment of at least 150% of the national average is only five hundred thousand U.S. dollars ($500,000). These areas are called "targeted employment areas." Targeted employment areas are designated by the state government of each state in the U.S. "Capital" is defined by the INS as cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien, provided the alien is personally and primarily liable. The assets of the commercial enterprise upon which the petition is based many not be used to secure any of the alien's indebtedness. All capital is computed at fair market value in U.S. dollars. Any assets acquired directly or indirectly by unlawful means (such as drug trafficking or other criminal activities) may not be used for the purposes of this section. To constitute a bona fide investment, the alien must not contribute his/her capital in exchange for a note, bond, convertible debt, obligation or any other debt arrangement between the alien and the new commercial enterprise.

Multiple Investors

INS regulations allow the establishment of a single commercial enterprise to be used as the basis of a petition for classification as an alien entrepreneur by more than one investor. Each petitioning investor must have invested, or must be in the process of investing, the required amount for the area in which the enterprise is principally doing business, and each individual investment must result in the creation of at least ten full-time positions for qualifying employees. Alternatively, the establishment of a commercial enterprise may be used as the basis of a petition for alien entrepreneur even though there are several owners of the enterprise, including persons who are not seeking classification, provided that all sources of capital invested are identified, and have been derived by lawful means.

Commercial Enterprise

A commercial enterprise is any for profit activity formed for the ongoing conduct of lawful business. It may be a sole proprietorship, a partnership (limited or general), a holding company, a joint venture, a corporation, a business trust, or other entity which may be publicly or privately owned. A commercial enterprise does not include a noncommercial activity such as owning and operating a personal residence.

The establishment of a new enterprise includes the creation of an original business, the purchase of an existing business, or the expansion of an existing business.

If the alien chooses to purchase an existing business, the business must be reconstructed or reorganized in such a way that a new commercial enterprise results. If the alien chooses to expand an existing business through the investment of the required amount of capital, a substantial change in the net worth of the business or the number of employees must result from the investment of capital. A "substantial change" means a 40% increase in the new worth or the number of employees in the business. This does not exempt the alien from the requirements relating to the amount of capital investment and the creation of full-time employment for ten qualifying employees.

To demonstrate business activity at a professional level, the applicant must submit documentation in the form of a job offer letter from the prospective employer in the United States or Canada, as well as supporting documents such as licenses, diplomas, degrees, certificates, or membership in professional organizations.

As set out in the Immigration and Naturalization Service (INS) regulations under NAFTA, the documentation should confirm the following:

(a) The nature of the professional activity

(b) The purpose of entry

(c) The anticipated length of stay

(d) The educational qualifications or appropriate credentials that demonstrate that the Canadian citizen has professional status

(e) That the Canadian citizen complies with all applicable state laws and/or licensing requirements for the occupation

(f) The arrangements for remuneration for services to be rendered.

Employee Creation

An "employee" is defined by INS as an individual who provides services or labor for the commercial enterprise, and who receives wages or remuneration directly from the enterprise. A "qualifying employee" is a U.S. citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized to be employed in the United States. They may include conditional residents, temporary residents, aslyees, refugees, or aliens remaining in the U.S. under suspension of deportation. It does not include the alien entrepreneur, his/her spouse, or sons, or daughters, or any nonimmigrant alien. The qualifying employee must be employed in a position that requires a minimum of thirty-five (35) hours per week. A job-sharing arrangement is acceptable wherein tow or more qualifying employee share a full-time position of at least 35 hours per week. Independent contractors, part-time employment, and combinations of part-time positions even if, when combined, meet the hourly requirement per week shall not be included as full-time employment.

An exception to the requirement of the creation of ten full-time positions is made in the case where an alien makes the required investment in a troubled business". A "troubled business" is one that has been in existence for at least two years, and has incurred a net loss for accounting purpose during the twelve or twenty-four month period prior to the alien filing his petition. The financial loss to the business must be at least equal to 20% of the business's net worth prior to the loss. If an alien invests the required amount of capital in a troubled business, the number of existing employees, whether greater or less than ten full-time employees, must be maintained at no less than the preinvestment level for a period of at least two years.

Filling the Petition

The petition to obtain permanent resident status under this classification must be filed on Form I-526, "Immigrant Petition by Alien Entrepreneur". The petition must be signed by the alien or his/her authorized representative, and accompanied by a fee. The petition may be filed by the alien on his/her own behalf. It must be filed with the INS Service Center having jurisdiction over the are in which the new commercial enterprise is, or will principally be doing business.

Supporting Documentation

          
          Extensive evidence must be submitted with the Form I-526, "Immigrant Petition by Alien Entrepreneur" to document that the alien has invested or is actively in the process of investing the required amount of lawfully obtained capital in a new commercial enterprise in the U.S. which will create at least ten full-time positions for qualifying employees.

To show that a new commercial enterprise has been established in the United States, the alien must submit:

1. As applicable, articles of incorporation, certificate of merger or consolidation, partnership agreement, certificate of limited partnership. joint venture agreement, business trust agreement, or other similar organizational document for the new enterprise;
2. A certificate evidencing the authority to do business in a state or municipality, or if the form of the business does not require any such certificate, or the state or municipality does not issue such a certificate, a statement to that effect, or
3. Evidence that, as of a certain date after November 29, 1990, the required amount of capital for the area in which the enterprise is located has been transferred to an existing business, and that the investment has resulted in a substantial increase in the net worth or number of employees of the business to which the capital was transferred. This evidence must be in the form of stock purchase agreements, investment agreements, certified financial reports, payroll records, or any similar instruments, agreements, or documents evidencing the investment in the commercial enterprise and the resulting substantial change in the net worth or number of employees.

To show that the petitioner has invested or is actively in the process of investing the required amount of capital, the petition must be accompanied by evidence that the petitioner has placed the required amount of capital at risk for the purpose of generating a return on the capital placed at risk. Evidence of mere intent to invest, or of prospective investment arrangements entailing no present commitment will not suffice to show that the petitioner is actively in the process of investing. The alien must show actual commitment of the required amount of capital. Such evidence may include but is not limited to:

1. Bank statement(s) showing the amount(s) deposited in U.S. business account(s) for the enterprise;
2. Evidence of assets which have been purchased for use in the U.S. enterprise including invoices, sales receipts, and purchase contracts containing sufficient information to identify such assets, their purchase coat, the date of purchase, and purchasing entity;
3. Evidence of property transferred from abroad for use in the U.S. enterprise, including U.S. Customs Service commercial entry documents, bills of lading, and transit insurance policies containing ownership information and sufficient information to identify the property and to indicate the fair market value of such property;
4. Evidence of monies transferred or committed to be transferred to the new commercial enterprise in exchange for shares of stock (voting or non-voting, common or preferred). Such stock may not include terms requiring the new commercial enterprise to redeem it at the holder's request; or
5. Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing which is secured by assets of the petitioner, other than those of the new commercial enterprise, and for which the petitioner is personally and primarily liable.

To show that the petitioner has invested or is actively in the process of investing capital obtained through lawful means, the petition must be accompanied, as applicable, by:

1. Foreign business registration records;
2. Corporate, partnership, or any other entity in any form which has filed in any country or subdivision thereof personal tax returns including income, franchise, or property (whether real, personal, or intangible), or any other tax returns of any kind filed within five years, with any taxing jurisdiction in or outside the United States by or on behalf of the petitioner;
3. Evidence identifying any other sources of capital; or
4. Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgments against the petitioner from any court in or outside the United States within the past fifteen years.

To show that a new commercial enterprise will create no fewer than ten full-time positions for qualifying employees, the petition must be accompanied by:

1. Documentation consisting of photocopies of relevant tax records, Forms I-9, or other similar documents for ten qualifying employees, if such employees have already been hired following the establishment of the new commercial enterprise; or
2. A copy of a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten qualifying employees will result, including approximate dates within the next two years, and when such employees will be hired.

To show that a new commercial enterprise which has been established through a capital investment in a troubled business meets the statutory employment creation requirement, the petition must be accompanied by evidence that the number of existing employees is being, or will be maintained at no less than the preinvestment level for a period of at least two years. Photocopies of tax records, Forms I-9, or other relevant documents for the qualifying employees, and a comprehensive business plan must be submitted in support of the petition.

To show that the petitioner is or will be engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial control, or through policy formulation, as opposed to maintaining a purely passive role in regard to the investment, the petition must be accompanied by:

1. A statement of the position title that the petitioner has or will have in the new enterprise, and a complete description of the position's duties;
2. Evidence that the petitioner is a corporate officer or a member of the corporate board of directors; or
3. If the new enterprise is a partnership, either limited or general, evidence that the petitioner is engaged in either direct management or policy making activities. If the petitioner is a limited partner, and the limited partnership agreement provides the petitioner with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act, the petitioner will be considered sufficiently engaged in the management of the new commercial enterprise.

If applicable, to show that the new commercial enterprise has created or will create employment in a targeted employment area, the petition must be accompanied by:

1. In the case of a rural areas, evidence that the new commercial enterprise is principally doing business within a civil jurisdiction not located within any standard metropolitan statistical area as designated by the Office of Management and the Budget, or within any city or town having a population of 20,000 or more as based on the most recent U.S. census;
2. In the case of a high unemployment area:

   a. Evidence that the metropolitan statistical area, the specific county within a metropolitan statistical area, or the county in which a city or town with a population of 20,000 or more is located, in which the new commercial enterprise is principally doing business has experienced an average unemployment rate of 150% of the national average; or

   b. A letter from an authorized body of the government of the state in which the new commercial enterprise is located which certifies that the geographic or political subdivision of the metropolitan statistical area, or of the city or town with a population of 20,000 or more in which the new commercial enterprise is doing business has been designated a high unemployment area.