Investment and immigration: new laws and opportunities for investors in the United States

Transcription

1 Investment and immigration: new laws and opportunities for investors in the United States By William A Pusey JR, Attorney-at-Law, Charleston, South Carolina, USA World citizens and other wealthy persons interested in repatriating to a new country may not consider the United States to be a prime destination. In particular, individuals considering redomiciling their families and their wealth may disregard the United States because of the system of worldwide taxation for its citizens and residents. However, the United States offers an immigrant investor visa program which is competitive with similar such programs offered by other nations, and savvy investors who properly configure their estates before immigration i may find the United States to be the best place to relocate. The United States, Canada and other countries have long offered to non-resident aliens who invest significant sums of money in their countries the opportunity to become permanent residents. These immigrant investor visa programs are designed to encourage foreign investment in a nation s businesses and citizenry in exchange for permanent residence in a politically, socially and economically stable country. In the United States, immigration, both legal and illegal, has become the target of a reform-minded Congress. New legislation would significantly restrict the inflow of immigrants who, under current law, would have been eligible for entry by virtue of family relationships, employment, or personal or political circumstances. The impact of the proposed legislation on the immigrant investor visa programs is uncertain. This article briefly examines the current immigrant investor visa programs offered by the United States, the proposed legislative changes to the programs, and the opportunities available through the programs for international investors in the United States. The United States Immigrant Investor Visa Programs At present, the United States offers two investment-related immigration programs through which non-resident alien investors may acquire an immigrant visa, colloquially referred to as the green card. In return for their investment in businesses located in the United States, alien investors are offered a more rapid (in most cases, by many years) route to permanent residency in the land of the free and home of the brave. Alternative methods for obtaining a green card require close family ties, certain employment relationships, or dire personal or political circumstances, and may take as long as five years. For aliens who regard the United States as the place of greatest economic, political, or familial opportunity, the immigrant investor visa programs provide the most rapid paths to legal residence. The Million Dollar Green Card The Immigration Act of 1990 (the Act ) created the first immigrant investor visa program, known as the Fifth Employment-Based Preference for Alien Investors Under the Fifth Preference, foreigners who invest a minimum of $1,000,000 in an enterprise in

2 the United States, or $500,000 in a business located in an area of low employment, creating at least ten new jobs for United States citizens, permanent residents, or nonresident aliens with permission to be employed, qualify for an immigrant investor visa. The law allocates 10,000 permanent residence visas each year for applicants in the Fifth Preference, of which at least 3,000 are reserved for investors in low employment areas. The basic requirements for obtaining an immigrant visa through the Fifth Preference are: 1. Investment of Capital. The minimum capital investment must be $1,000,000 unless the investor places $500,000 in a business in a targeted employment area with unemployment at least 150% of the national average. The investment may be in the enterprise s equity or debt, and may be in cash, equipment, or other tangible property which was lawfully acquired by the investor. The investment may be a mixture of cash and debt, such as a promissory note secured by personal assets. The cash investment may be as low as $300,000 in a properly structured investment. 2. Job Creation. The investment must lead to the creation of at least 10 new full-time positions of employment for United States citizens, residents, or qualified alien workers. 3. New Commercial Enterprise. The investment must be in one of four types of new commercial enterprise. The investor may: a) create or invest in a start-up business; b) buy and reorganise an existing enterprise; c) invest in an existing business if the investment results in a 40% increase in the company s net worth, number of employees, or both; or d) bail out a troubled business if the acquisition will result in the preservation of at least ten jobs for at least two years. The investor must be actively involved in the investment, such as by acting as a corporate officer, director, or limited partner, or in some other policy formulation role in the business. The alien may join with other foreign investors and United States residents in creating the new commercial enterprise. The immigrant investor visa is conditionally issued for a two year period during which time the Immigration and Naturalisation Service (the INS ) may revoke the investor s immigrant status for noncompliance with the program s laws and regulations. Ninety days prior to the expiration of the two year period, the investor may file a petition to remove the conditional residency in which he must demonstrate that he has met the requirements of the investor visa program. There are several statutory restrictions apart from United States immigration laws and regulations on the types of United States enterprises in which foreigners may invest. Perhaps the most notorious restriction on foreign investment relates to foreign ownership of United States media and communications companies. United States law also heavily regulates foreign investment in such industries as aviation, banking, shipping, land use energy and government contracting. Notwithstanding the opportunity to expedite immigration to the United States under the Fifth Preference, few foreigners have applied. According to the INS, since the program s inception in , there have been fewer than 300 total applications for immigrant investor visas. The Streamlined Alternative:

3 The Investor Visa Pilot Program In response to the lack of interest in the immigrant investor visa under the Fifth Preference, the United States Congress in 1992 created the Investor Visa Pilot Program (the Pilot Program ). Under the Pilot Program, 300 investor visas are reserved annually for foreigners who invest in new commercial enterprises located in INS-designated Regional Centres. The Regional Centres are organisations, dedicated to promoting economic growth in certain areas of the United States. The INS reported that, as of 1 November 1995, it had approved fourteen regional centres. The benefit of the Pilot Program is that alien investors may use reasonable methodologies to measure compliance with certain investor visa program requirements. Thus, while the revenues earned by the new commercial enterprise must generate United States exports, they may do so directly or indirectly through other United States businesses. The alien needs only to show that a reasonable connection exists between the generation of revenues by his business and the production of exports by other United States entities. The single greatest advantage of the reasonable methodologies tool available through the Pilot Program is its application to the job creation requirement. The alien s investment must still generate ten new full-time jobs, but this includes both new jobs in the enterprise itself and jobs in other companies generated indirectly by the company s export revenues. Investors may use certain multipliers and equations developed by, in some cases, the United States Government to measure the number of jobs created indirectly by the alien s investment, with the effect that investors through the Pilot Program have little or no difficulty proving to the creation requirement. Notwithstanding the relaxed requirements for the investor visa under the Pilot Program, relatively few foreigners have applied for investor visas. The INS has stated that it would further ease the regulations for the Pilot Program to encourage foreign investment through the Regional Centres. However, at approximately the same time these new regulations were being prepared, Congress began rewriting the laws governing immigration to the United States. These statutory revisions will probably have a significant impact on immigration by alien investors under both the Fifth Preference and the Pilot Program. Reform of the Immigration Laws of the United States The United States Congress is presently considering two separate, comprehensive immigration reform bills H.R in the House of Representatives and S in the Senate. Either bill, if enacted into law, would significantly reduce total legal immigration in all categories, and would expand enforcement efforts to prevent illegal immigration. The bills diverge in their treatment of the immigrant investor visa programs under the Fifth Preference and the Pilot Program. H.R. 2202, entitled Immigration in the National Interest Act of 1995, would maintain the total number of immigrant visas available to alien investors in the Fifth Preference at , but this number would be subject to reduction by one-half (5,000) if there are two few immigrant visas available for qualified applicants in the family-sponsored categories. The bill would also rescind the currently available option of investing $500,000 rather than $1,000,000 in a low-

4 employment area. H.R is presently scheduled for introductions on the floor of the House of Representatives. Importantly, the House bill would substantially improve the Pilot Program. It would increase the number of visas allocated to the Pilot Program from 300 to 2000, would lower the required investment in Regional Centres from $1,000,000 to $500,000, and would modify the employment creation requirement by reducing the number of new jobs the investment must generate from ten to five. The effect of these modifications would be to make the United States investor visa program more competitive with such programs offered by Canada and other Western nations. In contrast, Senate bill S. 1394, entitled Immigration Reform Act of 1995, would completely eliminate the Pilot Program and would substantially change the investor visa program offered under the Fifth Preference. The bill proposes reducing the number of visas available to all employment based applicants to 90,000 and would make no specific allocation of visas from the 90,000 to the investor visa program. Qualified immigrant investors would be placed third in line to receive a green card if any remain after grants to the higher-in-priority classes of multinational executives and aliens of extraordinary ability. The bill would also change the job creation criterion to require that the new positions be filled only by United States citizens and permanent resident aliens. Finally, the bill would remove the $500,000 level of investment by aliens in lowemployment areas. As compared with the House bill, S would impair the United States investor visa program with the predictable result of less interest and fewer applications for permanent resident in the United States by alien investors. The Senate bill is undergoing additional legislative mark-ups by the Senate Judiciary Committee. Assuming that the very different House Senate bills are passed in some form by their respective chambers, they will pass to a joint committee consisting of members of the House and Senate for reconciliation of the divergent terms. Thereafter, they will be re-introduced in the two chambers in identical form and, if each is passed by its respective chamber, will be presented as one bill to the President for signature or veto. Many commentators believe that an immigration reform package will be enacted into law in the United States by mid-to-late The United States as a Destination for Immigration The primary reason that alien investors appear to have shunned the United States and its investor visa programs is the US system of taxation. The reach of United States taxation is pervasive, extracting its percentage of flesh from the bodies of the worldwide assets and estates of its citizens, permanent residents and, in certain cases, temporary residents. Other reasons for the lack of popularity include the breadth of the United States laws and regulations, the expanse of personal and corporate liabilities, the expense of litigation, and the extent of required public disclosures of individual and business information which may be kept confidential in other nations. On the other hand, the United States may for a number of reasons be considered a very attractive destination for immigrants.

5 The United States continues to have the strongest economy in the world, may provide the best opportunity for individual for individual advancement, and remains the most stable polity and market economy in the world. Investors who desire to escape economic, political, or personal uncertainty at home, or who seek solid returns on their monetary and personal investments coupled with the safety of United States permanent residency, may find that the United States investor visa programs are the most rapid paths to permanent residence. Conclusion The United States immigrant investor visa programs presently offered through the Fifth Preference and the Pilot Program significantly streamline the process of acquiring permanent residency in the United States. The statutory changes on the Congressional event horizon will almost certainly change the immigrant investor programs but with currently unpredictable effects. Foreign investors who determine that he United States is the preferred domicile, whether for economic, political, or personal reasons, should consider participating in, and should stay abreast of the changes to, the United States immigrant investor visa programs. i The reader is referred to the article Statutes of Liberty? The Challenge of Pre-Immigration US Tax Planning for Non-Resident Aliens, by Timothy D. Scrantom, published in the September, 1995 issue of Offshore Investment.