"How to Become a US Resident through the EB-5 Investor Green Card Program. In cooperation with

Transcription

1 "How to Become a US Resident through the EB-5 Investor Green Card Program In cooperation with

2 2 THE FIRM Private Advising is a Miami-based law firm of international scope and unparalleled capabilities in Latin America. We have built a forward thinking law firm designed to create long-term collaborative relationships with a select group of clients interested in the same. Private Advising was selected by US News & World Report Best Lawyers as a 2015 Tier 1 Best Law Firm in three different specialties: Corporate Law, Derivatives and Futures Law, and Securitization and Structured Finance Law. Our practice areas: Corporate Mergers & Acquisitions (M&A), Venture Capital and Private Equity Real Estate, Asset Protection and International Investments Litigation and Dispute Resolution We advise business owners in connection with the creation of EB-5-qualified projects, and individual investors in connection with selecting and conducting due diligence on potential EB- 5 investments.

3 3 JACKSON HWU Jackson is a corporate attorney with more than 15 years of broad cross-border transactional experience. As a founding partner of Private Advising Group, his practice focuses on US and international corporate advising, mergers and acquisitions, financing and private equity. Jackson advises high net worth clients from Brazil and other Latin American countries in all facets of US and international law, including with respect to investor immigration (EB-5 investor greencard and related matters). Originally from São Paulo, Brazil and holds a law degree (LL.B.) from USP - São Francisco, a Masters in Law and Business (LL.M.-K) from Northwestern University School of Law and Kellogg School of Management and a Juris Doctor (J.D.) from Northwestern University School of Law in Chicago, Illinois.

4 4 THE FIRM With more than 2,400 immigration professionals throughout over 40 strategically located offices across 18 countries, Fragomen Worldwide is recognized as the world's leading immigration law firm. We provide comprehensive immigration services. Immigration is not just a practice area within our firm - it is our only practice.

5 5 ENRIQUE GONZALEZ Enrique is the Managing Partner of Fragomen, Del Rey, Bernsen & Loewy s Florida office. Enrique s practice is broad based and includes counseling companies, institutions and individuals. He has significant experience related to managing the immigration compliance programs for companies and institutions engaged in a wide range of activities/industries including: agriculture, education/research, energy, entertainment, food service, healthcare, hospitality and technology. He also provides legal counsel to entrepreneurs and high net-worth individuals regarding investment based immigration (including the EB-5 Program). From January to August 2013, Enrique served as Special Counsel on Immigration to U.S. Senator Marco Rubio (R-FL) where he was the Senator s principal advisor/negotiator on the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744) that was approved by the U.S. Senate on June 27, Enrique s immigration reform work with Senator Rubio has been the topic of multiple articles throughout a number of publications, including The New Yorker, Bloomberg Businessweek, the Miami Herald, The New York Times, Politico and The Washington Post. He also served as the Vice Mayor/Commissioner of the City of West Miami from 1994 to Enrique has lectured nationally, regionally and locally on immigration matters to various groups.

6 6 What is the EB-5 Program? What are the Main Requirements? U.S. Citizenship and Immigration Services (USCIS ) administers the Immigrant Investor Program, also known as EB-5, created by the U.S. Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors (including investment in Regional Centers designated by USCIS). There are two (2) important requirements that must be met in order to successfully participate in the EB-5 Program: Capital Investment Requirements Job Creation Requirements

7 7 Capital Investment Requirements Required minimum capital investment: The minimum qualifying investment in the United States is USSD$1 million; or If investing in a Targeted Employment Area (High Unemployment or Rural Area) the minimum qualifying investment is USD$500,000. A Targeted Employment Area is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate. A rural area is any area outside a metropolitan statistical area or outside the boundary of any city or town having a population of 20,000 or more.

8 8 Job Creation Requirements The qualifying investment must: Create or preserve at least ten (10) either direct or indirect, full-time jobs for qualifying U.S. workers within two years of the immigrant investor s admission to the United States as a Conditional Permanent Resident. Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital. Indirect jobs are those jobs shown to have been created as a result of capital invested in a commercial enterprise affiliated with a regional center. A foreign investor may only use the indirect job calculation if affiliated with a regional center.

9 9 What is a Regional Center? Authorized investment vehicle Great majority are private companies (not government owned) Can count direct and indirect employment creation Must still prove in every project that jobs will be created, directly or indirectly Approval is not automatic (not all private companies can become Regional Centers) Investment is NOT US Government Guaranteed No need for investor to be actively working in the business where investment is made No need for investor to live in the state where the project is located

10 10 How to identify EB-5 projects to invest in? USCIS maintains list of approved EB-5 Regional Centers by state. There are over 530 centers today (many already closed for investment) Select Reputable Regional Centers with Good Track Record beware of fraud and cowboys in this market, also non-compliance with US Securities Laws and US Investment Advisory Act. Select Reputable Immigration Lawyer with EB-5 Know-How Work with a Reputable Corporate Lawyer to Conduct Legal Due Diligence of investment to verify compliance with EB-5 Program Rules and understand the investment returns, risks and exit strategy. Corporate Lawyer to also conduct legal Due Diligence of offering prospectus, subscription agreement, shareholders agreement, etc. to verify compliance with EB-5 Program Rules, US Securities Laws, US Investment Advisory Act, etc.

11 11 Who can participate? Any specific rules for Brazilian nationals? Any foreign national can participate. Majority of EB-5 applicants are Chinese. Must be qualified investor. Need to prove source of funds of investment. Must be able to document lawful source of funds: This is accomplished by tracing the source and path of the money to be invested (every dollar invested must be legal and accountable) Source of funds may be personal (income, investments, inheritance) or a gift from family, friends or company: Origin of gift or loan funds MUST be documented to be from lawful source Bank Loans not secured by the investment do qualify with proof of the source of the security for the loan Applicant can be living in Brazil or in the US (legal status). No difference in EB-5 investment required from Brazilians or any Brazilians with double-citizenship in Italy, Portugal, etc. (no lower investment amount)

12 How long does it take to obtain the greencard? What are the main steps? o Step 1: Filing of Form I-526 with USCIS (taking approximately 6 to 12 months). Approved I-526 Petition Processed at National Visa Center ( NVC ) (taking approximately 1 to 2 months) o Step 2: NVC sends petition to U.S. Consulate for Final Interview (taking approximately 1-3 months)* o o o If the Investor is in the U.S. the case may be processed as an Adjustment of Status (AOS) (Alternate Step 2). Work Authorization (EAD) and, if qualified, travel documents (Advanced Parole) will be issued to the Investor and his or her qualifying family approximately 90 days after filing AOS (Form I-485) The processing time of the AOS will take approximately between 3 and 9 months *Note: Timing may vary for different US Consulates 12

13 13 EB-5 Steps (Continued) Approval results in Two (2) Year Conditional Permanent Residence (CPR) during which must continue to meet investment and job creation requirements Step 3: Must submit application (Form I-829) for removal of conditions 90 days before 2nd anniversary of CPR and not later than the 2nd anniversary of the CPR Divorce from spouse or marriage or aging out of children after CPR will not stop removal if all other requirements are met Estimated processing time of this step is 3 to 6 months or more

14 What are the main benefits of the EB-5 Program and of becoming a US permanent resident? When can I move to the U.S.? 14 Permanent residency in US without maximum stay restrictions for principal investor, spouse and children under 21 years of age. Can obtain US Social Security Number. Children can attend public or private schools. Ability to live, work, or study in US for principal investor, spouse and children no restriction as in other non-immigrant visas. Eligible to apply for U.S. Citizenship after 5 years from date of Conditional Permanent Residence Can move to US after I-526 (conditional greencard) is approved and applicant obtains visa stamp at consulate or adjusts status in US (earliest 9-12 months after investment).

15 15 What are the main tax consequences of becoming a US resident? U.S. Tax system subjects citizens and residents to US taxes on income earned in the US and abroad (worldwide income). Once a foreign national becomes a US permanent resident (greencard holder), he/she is a US taxpayer. In case of Brazilians, income generated in Brazil will also be taxed in the US (subject to certain foreign tax credits). U.S. Estate Tax system imposes estate tax of 40% on worldwide assets at time of death. Pre-Immigration Tax Planning - Private Advising assists foreign investors in understanding the tax impact of becoming a US permanent resident and structuring their assets, investments and other revenue streams to mitigate the unintended effects of US taxes. DISCLAIMER: The content of this presentation is general in nature and does not constitute legal or tax advice from a qualified attorney.

16 16 Opportunities for Brazilian businesses to raise capital through EB-5 STRUCTURING A PROJECT AS REGIONAL CENTER The project shall be an investment vehicle qualified by the U.S. Immigration Department authorized by industry, geographic area and investment structure. It is necessary to corroborate in each case the direct or indirect employment generation (Business Plan and Economic Impact Reports). The investment is NOT guaranteed by the U.S. Government. It is not necessary for the investor to work actively in the company in which the investment was made or to reside in the same state or city. OPPORTUNITIES FOR BRAZILIAN BUSINESSES As corporate and securities lawyers, Private Advising advises business owners in different industries (food & beverage, hospitality, real estate, infrastructure, technology, etc.) looking to expand their business in the U.S. using capital raised through the EB-5 program. We use our expertise and network in the EB-5 industry to connect business owners with other professionais required to develop a successful EB-5 offering. Private Advising prepares the offering prospectus and investment documents in accordance with US Laws.

17 17 DISCLAIMER The content of this presentation is general in nature and does not constitute legal or tax advice from a qualified attorney under US or foreign law. Before making a decision to invest in an EB-5 project/investment, you should consult with a qualified attorney.

18 18 QUESTIONS? CONTACT DETAILS: Jackson Hwu Founding Partner Private Advising Group, PA 600 Brickell Avenue, Suite 1725 Miami, FL USA Direct: Brazil Number: CONTACT DETAILS: Enrique Gonzalez Managing Partner Fragomen Worldwide 1 Alhambra Plaza Suite 600 Coral Gables, FL Tel: egonzalez@fragomen.com jackson@private-advising.com