Investment amounts and targeted areas, regional centers and direct investment, job creation counting, the petition and the removal of conditions, sustainment and redeployment, treaty investor status, and parole for start-up founders.
Where a job-creating entity repays capital before the investor's requirements are complete, the new commercial enterprise may deploy the funds again to keep them at risk. The statute conditions this on the business plan having been executed in good faith without material change, on sufficient jobs having been created for all investors, on repayment consistent with the plan, and on the redeployed capital remaining at risk and not held in passive investments such as stocks or bonds.
Gifted and borrowed funds may count toward the required investment only if gifted or lent in good faith and not to circumvent the limits on permissible sources of capital. Where funds are gifted or lent by anyone other than a bank, the donor or lender must supply the same business, tax and judgment records the investor supplies. A loan funding the investment must leave the investor personally and primarily liable, secured by assets the investor owns, with no security over the enterprise.
A person engaged in the business of effecting transactions in securities for the account of others is a broker and must be registered. Transaction-based compensation is the factor that most reliably places a person inside the definition. A narrow safe harbor allows certain associated persons of an issuer to sell without registration, but it forbids commissions. The immigration statute adds a separate registration for promoters, and unregistered activity can render contracts voidable.
A standalone investor files one petition establishing the enterprise, the investment, the lawful source of capital and fees, and a business plan supporting direct job creation. A regional center investor files a different petition, which may incorporate records already filed in the project application, and relies on that approved application for the project and job creation case. Both carry a signed disclosure of fees paid to agents, finders and broker-dealers.
A designated regional center is subject to continuing oversight. The statute requires periodic audits of each center, permits site visits to the center, the new commercial enterprise and the job-creating entity, and obliges the center to file an annual statement covering capital, jobs and the persons involved. Refusing access is itself a ground for sanction, and findings can produce fines, suspension, debarment of individuals or termination of the designation.
A person already in the United States in another nonimmigrant status may apply to change into a treaty classification without leaving, using a petition filed by the enterprise. Approval grants status but confers no visa, so any departure requires a consular application in which the officer makes an independent determination. Applying abroad in the first instance produces both the visa and the admission, at the cost of leaving and of a decision that is largely unreviewable.
The regulation measures sustainment by the investor's two years of conditional permanent resident status, and the agency's guidance states that an investor need not maintain the investment beyond that period. The amended statute instead requires that capital be expected to remain invested for not less than two years, which points to the date of investment rather than to a residence anniversary. The agency has not published guidance reconciling the two measures.
A pending or approved immigrant petition confers no right to be present in the United States. An investor waiting for a visa number must hold an independent nonimmigrant status or wait abroad. Some categories tolerate an intention to remain permanently and some do not. Unauthorized employment or a lapse in status can bar adjustment of status outright, because the statutory forgiveness for short violations names the first through third employment preferences and not the fifth.
The priority date on an investor petition is the date the petition was properly filed. Immigrant visa numbers are capped annually, divided among preference categories, and further limited so that no single country of chargeability takes more than seven percent of the total. Within the fifth preference, reserved shares are set aside for particular project types. A visa may be issued only when the applicant's priority date is reached in the applicant's category and country.
A regional center's designation may be terminated for conduct inconsistent with its designation, untrue statements in required filings, breaches of the bona fides or securities provisions, or grounds relating to fraud, public safety or national security. Termination is mandatory where a center fails to pay the annual Integrity Fund fee within ninety days, refuses or impedes an audit, or breaches the redeployment conditions. Lesser sanctions include fines, suspension and permanent bars.
Treaty trader and treaty investor status is available only to nationals of a country covered by a qualifying treaty of commerce and navigation, an equivalent agreement, or a statutory designation. The individual must hold that nationality and the enterprise must be at least fifty percent owned by nationals of the same country. Residence does not substitute for nationality, and the effect of a treaty ending is governed by practice rather than by any express rule.
Capital must be placed at risk for the purpose of generating a return, with a real risk of loss and a real chance of gain. The statutory definition of capital excludes a contribution made in exchange for a debt instrument issued by the enterprise, a contribution carrying a guaranteed rate of return, and a contribution subject to any contractual right to repayment such as a mandatory redemption or an investor put option, even if that right is contingent on the enterprise performing.
