EB-5 preference category was created in 1990 for immigrants seeking to enter the United States to engage in a commercial enterprise that will benefit the U.S. economy and directly create at least ten full- time jobs. The minimum qualifying investment amount is $500,000 for commercial enterprises located within a rural area8 (or targeted employment area) and is otherwise $1,000,000.
Under the Canada Immigrant Investor program, introduced in 1986, foreign business persons establish eligibility by proving that they have identified managerial / business experience during two out of last five years preceding the filing of application, a net worth of at least CDN $800,000, and by affirmatively expressing that they are willing to deposit CDN $400,000 into designated government guaranteed securities for a period of five years.
Passive versus active Investment
Unlike the EB-5 program, the Canadian Immigrant Investor program is a PASSIVE program: a qualifying investor is not required to open a business, or hire and manage employees. Rather, the investment itself is assumed to spur significant economic activity and create jobs. In fact, post visa issuance, the applicant can carry out any activity in Canada, including but not limited to doing jobs and living off additional passive investments. Of course, he can do active business as well. If he does business, there are no restrictions on geographical area and location and nature of commercial activity and on any minimum number of employees that business must employ.
EB-5 program is NOT a passive investment program and is in fact expected to create proven employment that is generated through a viable and registered commercial enterprise. The EB-5 regulations require involvement in management or policy making. The regulations deem a limited partner in a limited partnership, which is properly structured and that conforms to the Uniform Limited Partnership Act. Having said so, this program is used by professionals, businessmen, people planning their children’s education and attend US colleges and Universities and seeking a good quality of life or seeking retirement in the USA. The EB-5 visa is a highly flexible program and permits the investor to what he wants, including seeking employment in USA.
Stage and timing of investment
Canadian Immigrant Investor program require investment AFTER the applicant’s documents and applications forms and narratives/ declarations as regards net worth accumulation and business experience have been reviewed by the Visa offices and he has been out through a selection interview. Making payments for immigrant investor program has its own costs, especially foreign exchange transactions and transfer costs not to talk about the need to liquidate once net worth and assets to arrange for liquid funds required for transfer. Thus, from applicants view point it makes sense to make funds transfer- to meet the requirements of qualifying investments- after his application has received provisional approval.
EB-5 case procedures requires an investor to FIRST make a qualifying investment, and then file a Form I-526 petition (and supporting documents) with USCIS. After this the U.S. Department of State’s National Visa Center will process the EB-5 immigrant visa through the local U.S. consular post with jurisdiction over the place of residence. The EB-5 immigrant visa is used to enter the United States, which commences the two-year conditional lawful permanent resident status. The applicant must thus be prepared for situations where – if his application is denied – he would have incurred irrecoverable expenses on foreign exchange transfer and then return. He might also have disposed off some valuable asset to arrange liquid funds in the first place and would be required to look for new investment assets. He should factor in expenses and costs and losses that he might incur while going through sale and purchase of assets. From the time that he makes the investments and time he receives the money back, he will need to factor in the lost interest in the process. In addition, he would loose the fee the he would have paid to the lawyer for applying for the application in the first place!
Conditional Versus unconditional green Card
EB-5 Visa is a conditional green Card and to start with, he will only get a two year conditional lawful permanent residence status. During the interim period he should be able to prove that the commercial enterprise in which his funds were invested met the conditions- especially related to creation of 10 new jobs on an ongoing basis. Should he not be able to meet the conditions, he will be asked to leave the country. This uncertainty about the likely continuity of the status is one of the key reasons why less than 10% of the annual quote for EB-5 category is used every year.
Successful applicants for Canada Immigrant Investor program get UNCONDITIONAL permanent resident status from day one of landing. It is comparable to the status the applicant gets under EB-5 program, after two years and subject to removal of conditions attached to his visa. The program is thus more certain and enables the applicant to appropriate plans vis-à-vis family and business relocation or expansion and also new investments.
The minimum amount of investment required under the EB-5 program is USD 500,000 and under the Canada Immigrant Investor program it is CAD 400,000. At current exchange rates, it implies that the investment required is almost 50% more under the EB-5 program.
Loan Facility by Financial Institutions
The Canada Immigrant Investor program permits mandated financial institution to provide loan facility towards meeting the investment requirements. The program permits to make a margin money payment of as low as CAD 120,000 and balance being financed by financial institutions. This creates an excellent opportunity for the applicant as it enables him to meet the program requirements at least opportunity cost.
When compared with Canada Immigrant Investor program, the documentation requirements are more extensive and subjective under the EB-5 program and persistent request of evidence- after filing of application- leads to inordinate delays in its processing.
Costs, extent of loss or opportunity of profit
The investment under the EB-5 program is an actual investment in a running commercial enterprise. The investment is subject to normal business situations and the enterprise may or may not make money. If the business looses money, the investor will loose his share of money as well. There is no limit to the amount of money that the business and therefore he may loose. Of course, he will make money if the business makes money. In such a case, there is no limit on the amount of money that the business and therefore he may make. The bottom line is that the investor applicant must be prepared to either of the situations.
Canada Immigrant Investor program has costs that can be identified. The applicant makes an interest free investment of CAD 400000 and the interest that he looses becomes his cost. When he goes for the finance option, the interest that he pays on the financed amount becomes his cost. Either way he knows his cost for taking residence visa under this program.
In case of EB-5, Majority of the regional center investments require the applicant to pay an administrative fee of (normally) around USD 50,000. This is besides the investment of USD 500,000. In case the application is refused, for any reason, major part of this fee and in some case the entire fee paid under this head is non-refundable.
Under Canada Immigrant Investor program, the applicant incurs costs towards application processing fee to Governmental offices. A typical family consisting of applicant, spouse and two dependent children may incur a cost of around CAD 6000. This fee is non-refundable. In addition he may incur a professional and consultant fee expense of around CAD 5000. Majority of reputed consultants refund this consulting fee – in full or majority – if the application is refused.
USA permits dependent less than 21 years to be considered as part of the application under EB-5. Canada permits dependents less than 22 years to be part of the application. Canada permits dependents above 22 years to be part of the application so long as children are full time students in a accredited and Government recognized institute
In Brief, both are good and attractive program but over the years Canada Immigrant Investor program [http://www.abhinav.com/Canada_immigrant_investor_program.htm] has become more acceptable due to its simplicity and established procedures. Decision making is easier for the case officers due to available past precedents to refer to and compare new applications with.
EB-5 program is still evolving and is preferred route for extreme high risk wealthy individuals and families.
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