Asian Journal- The Filipino-American Community Newspaper

ENTREPRENEURS and facilitating business and trade are the solution(s) to recession; not government bailouts and the creation of government programs and agencies, the costs of which are shouldered by the taxpayers of the United States and future generations. Along those lines, foreign investment in the United States, whether big or small, will stimulate the United States economy. This article, therefore, is an introduction and overview of investment based immigration opportunities in the United States. Specifically, this article shall discuss E1/E2 Treaty Investor Visas and touch on the EB5 Immigrant Based Investment Program.

Eligibility for participation in the E1 or E2 Treaty Investment Program requires that a participating foreign national or foreign company be from a country that has a treaty of Friendship, Commerce and Navigation (FCN) with the United States. The Philippines has an FCN Treaty with the United States and therefore individuals and companies from the Philippines are eligible for participation in the program.

Among other things, an individual or company participant in the E1/E2 program must demonstrate that its trade with or investment in the United States is "substantial". Substantial is a term of art and is not defined in the law. Practically speaking, if it "smells substantial" than it is. For example, one could not start a factory in the United States with an investment of $10,000. This investment would not pass the proverbial smell test because as suggested in the regulations, the substantiality of the investment varies proportionally to the nature of the investment. It stands to reason that in this economy, to wit: a buyer’s market, the required substantiality of trade or investment would be less than what it was before.

The E1/E2 Visa or change of status application is non-immigrant. And, though it might not result in lawful permanent residence, it would be renewable indefinitely, normally for periods of five years at a time. As an aside, entrepreneurs and business persons must consider the tax consequences of investment and permanent residence for once one becomes a permanent resident of the United States they become subject to taxation of their worldwide income.

Unlike the non-immigrant E1/E2, the Employment Based Fifth Preference Category (EB5) results in lawful permanent residence in the United States for the investor and his/her spouse and minor children. Conditional residence would be obtained at first (two years), subject to removal of those conditions two years later provided that the investment is ongoing. The EB5 program was once known as the million dollar green card since the threshold for investment was one million dollars. Among other things, the would be investor, in addition to the seven figure investment would have to create ten jobs for Americans. Not so anymore. Rather, there are a number of pre-approved programs styled "Regional Centers" which reduce the threshold investment to $500,000 with no job creation requirement. Instead, the centers have provided convincing evidence to the government that investment itself would trickle-down and create the necessary jobs and growth within specific communities. In essence, the project it a turn-key one that ideally results in lawful permanent residence coupled with a return on said financial investment.

If you are in a position to consider investing in the United States and are desirous of doing business here in one form or another, make sure that you do your due diligence and investigate the investment vehicles not to mention the lawyers that you would consider hiring in a matter such as this. Projects such as these require a team of experts from both legal and financial disciplines. This is buyer’s market. So, if you are in a position to buy, consider doing it now.

***

Richard M. Wilner is a principal of the firm Wilner & O’Reilly.

Please contact Richard Wilner at(562) 207-6789 or 1-877-7MABUHAY. Wilner & O’Reilly, APLC, is located at 17777 Center Court Drive, Suite 200 Cerritos, CA 90703. Visit www.wilneroreilly.com.

( www.asianjournal.com )

( Published on February 28, 2009 in Asian Journal Los Angeles p. C4 )