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(#77-04/16/98)
Million Dollar Investment Visa and Business Arrangements
None
Answer:
Since 1990, alien entrepreneurs that invest between $500,000 and $1,000,000
in a commercial enterprise in the United States that employs at lease
10 US citizens or legal permanent residents have received green cards.
Over the last several years, many serious
issues have arisen regarding the legality of certain types of business
arrangements used to qualify as immigrant investors under this section
of the law. A 35-page recent memo from the INS Office of the General
Counsel concluded that several existing investor visa arrangements do
not meet the statutory requirements.
The business plans at issue generally involve the creation of a limited partnership that pools money of alien investors. The arrangements appear to give the alien relatively risk-free "debt interests" rather than "equity interests" in the business. Many plans involve guaranteed interest payments, buy and sell options at a fixed price other than fair market value, and "balloon payments."
The memo then states that (1) the INS should deny pending investor petitions based upon such programs,
(2) Embassies return to the INS approved petitions where they have not issued visas yet so that the INS can revoke the petitions, and
(3) as soon as possible, terminate the conditional green card status of aliens who received their conditional green cards under the type of programs discussed above.
Although the memo released states that it is legal for the INS to take back the green cards from aliens who have already had their conditional green card status removed, whether the INS will actually do this will be discussed in a future memo from the Office of the General Counsel.
Obviously investment programs targeted by this legal opinion are upset. They are currently attempting to amend the programs. Furthermore, they are trying to get the support of Congress to amend the law to make their existing programs legal. Court action is also very likely given the substantial financial interest of the investors and the investment programs.
It is important that people involved with or thinking about investing with these types of programs are aware of the controversy. This is especially true where a family is trying to get green cards for children who are approaching 21 years old, since beyond 21 a child would not qualify with the remainder of the family. An unbiased legal opinion by an US Immigration attorney is strongly recommended.