The following information was prepared by the Department of Business Economic Development & Tourism. Purpose is to assist foreign investors who are interested in obtaining U.S. permanent residency (Greencards) through qualifying investments. This visa category is also known as, "Employment Creation Investors". Other names used include: "Foreign Entrepreneur Visa" and "Immigrant Entrepreneur Visa".

The Immigration Act of 1990 created the Investor Visa Category allowing qualified applications to obtain Green Cards (lawful Permanent Resident Status) through investment in a U.S. enterprise. The Investor Visa Category has attracted the attention of many prospective immigrants because it allows the combination of immigration plans with new investment projects.

The State of Hawaii Department of Business, Economic Development and Tourism (DBEDT) followed the drafting and finalizing of government regulations relating to the Investor Visa Program and has contacted senior Immigration and Naturalization Service (INS) officials regarding Investor Visa policies and procedures. With the designation of Hawaii as the only statewide Regional Center Authority, numerous requests for clarification of the Investor Visa Program have been received. In response to these requests, we have attempted to answer questions most often asked of us. Please contact DBEDT's Investment Promotion Program at Tel: (808) 587-2766 or (808) 587-2787 by fax, for more information.

Ten thousand (10,000) Immigrant Visas ("Green Cards") are available each year for foreign investors establishing a "new commercial enterprise" in the U.S. The investor must invest $1,000,000 in the enterprise (or $500,000 in certain "targeted employment areas"), and create at least 10 full-time jobs for U.S. citizens or permanent residents, excluding the investor's spouse and children.

An exception to the 10 direct job requirement is available through the State of Hawaii's Regional Center Authority. Under this program, direct job creation requirements are reduced for investments in export-related industries. Only 300 such visas will be issued nationwide each year, up to the period ending September 30, 2000.

A "new commercial enterprise" is any lawful, for-profit business established after November 29, 1990. Both the creation of a new business, and the purchase and re-capitalization or reorganization of an existing business are allowed. The commercial enterprise may be a sole proprietorship, limited or general partnership, joint venture, corporation, business trust, or any other publicly or privately owned business. In addition, a commercial enterprise can consist of a holding company and its wholly owned subsidiaries, or any other entity which may be publicly or privately owned.

Under the broad definition, investment funds which pool investments into real estate or other for-profit projects qualify as "commercial enterprises". Non-commercial activities, such as owning/operating a personal residence, do not qualify for Investor Visas.

"Targeted Employment Areas" are rural areas and areas where the unemployment rate is at least 1.5 times the national average. In these "targeted employment areas", the investor need only invest $500,000 when establishing a new commercial enterprise. However, 10 full-time jobs for U.S. workers must still be created.

In accordance with the INS regulations, DBEDT has designated targeted employment areas which now cover most of the state's land area. All the neighbor islands, several areas on Oahu (i.e., City and County of Honolulu), and parts of Hilo Town are targeted employment areas.

Yes. The $1,000,000 (or $500,000) investment may include legally obtained cash, equipment, inventory, or other tangible property, and cash equivalents, such as certificates of deposit, Treasury bonds, and other instruments which are easily convertible into cash. The amount invested may also include indebtedness secured by assets owned by the investor. However, when the Investor finances a new commercial enterprise through borrowing, the Investor himself/herself must be personally and primarily liable for the debt. Furthermore, the assets of the enterprise itself may not be used to secure any of the indebtedness.

"Full-time employment" is defined as employment of a U.S. worker not related to the Investor, in a position requiring a minimum of thirty-five (35) working hours per week. Job sharing, (two or more employees sharing a full-time position) also constitutes a full-time employment. However, two or more distinct, part-time positions may not be combined to make a full-time position, even if the total hours worked by all part-time employees exceeds thirty-five hours per week.

All U.S. citizens, permanent residents (Greencard holders), and other immigrants such as conditional residents, temporary residents, and refugees qualify under the Investor Visa Program. The Investor and his or her immediate family members, and nonimmigrant (e.g., E, H, L, F or J visa holders) may work at the enterprise, but do not count toward the required number of employees.

Yes. In multiple investor cases, each investor must meet the $1,000,000 or $500,000 requirement, as well as the job creation requirement. Also, one Investor may seek an Investor Visa even if some or all of the other Investors do not. In such case, the total number of jobs created will be allocated to the Investor seeking the Investor Visa; however, that Investor must himself/herself still invest in the required $1,000,000 or $500,000.

Yes. Investment in targeted employment areas need only be $500,000. Also, investment in a "troubled business" does not require the creation of ten new jobs, only the preservation of ten or more existing jobs through investment of the required amount. A "troubled business" is defined as one which has been in business for at least two years, and has incurred a new loss of at least 20% of its own net worth during one of the two years prior to the Investor's application.

Yes. The Hawaii Regional Center Authority allows job creation in export-related industries to be used in lieu of direct job creation. Utilizing employment multipliers, both direct and indirect job creation will satisfy the ten job criterion.

The investor must either have invested the required amount after November 29, 1990, or be "actively in the process of investing" in the new commercial enterprise.

No. The funds can be phased in over a two year period. However, the investor must commit (i.e., put at risk) the entire amount at the time of application. Having made the initial investment, the investor can commit to the balance through promissory notes or similar instruments.

No. Plans to invest in the future, or speculative investments lacking present financial commitment, do not qualify. The Investor must establish that he/she is in control of the capital by demonstrating that the funds or assets are subject to his/her personal risk in the commercial sense; i.e., the capital is committed to the commercial enterprise and is subject to total or partial loss.

The INS does not "pre-approve" investment funds as qualify investments under section 203(b) (5) of the Act.

Evidence must be submitted to show the Investor has placed the required amount at risk. This evidence may include bank statements showing the amount deposited in the U.S. business accounts for the enterprise; evidence of assets which have been purchased in the U.S. for use in the U.S. enterprise; evidence of property transferred from abroad for use in the U.S. enterprise; or evidence of borrowing which is secured by assets of the Investor (assets of enterprise not included), for which the Investor is personally and primarily liable.

No. But the Investor must submit evidence to show that the amount invested was obtained through lawful means. The evidence may include personal and other tax returns filed within five years; evidence of all pending civil or criminal actions; foreign business registration records; loan documents; and evidence identifying any other source of capital.

No. However, the Investor must play an active role in the investment by engaging in the management of the new commercial enterprise. This may be done either through day-to-day managerial control, or through policy formulation (e.g., membership on a Board of Directors, limited partnership agreements assigning the Investor certain powers and duties, etc.)

When the Investor Visa Application is approved, the Investor and his/her spouse and children under 21 years of age receive conditional Permanent Residence (Greencards) for a two-year period. The Greencards are obtained through application at a U.S. Consulate in the Investor's native country, or through application for adjustment of status to Permanent Resident while in the U.S. under a valid nonimmigrant visa category (e.g., E, H, L, etc.). The Investor and family members may then work and/or attend school in the United States, and travel at will on temporary visits abroad.

The commercial enterprise, including the 10 full-time jobs (less in the case of those applying under the Regional Center provisions), must be maintained for at least a two-year period. There is no requirement that the enterprise make a profit. If the enterprise is satisfactorily maintained for the two-year period, the Investor may seek removal of the conditional Green Card status. This must be done within the ninety days preceding the end of the Investor's second year as a Greencard holder. At this time, the Investor must have the intent to continue with the enterprise.

The Investor is granted full Permanent Resident (Greencard) status at the end of the two-year conditional period. The Investor and family members may remain Permanent Residents of the United States, or later seek U.S. citizenship. As already mentioned, the Investor must have the intention to continue with the commercial enterprise after first two years, however, it is conceivable that the enterprise could alter, terminate or be sold, due to changes in the business climate, changes in the Investor's plans and circumstances, etc.

Yes. Under certain circumstances, arrangements such as redemption right, third party purchase, or other disposition may satisfy the "at risk" requirements. The agreement for disposition must expressly provide, in writing, that the amount the alien investor receives shall not exceed the fair market value of the investment at time of disposition.

No. The U.S. Immigration and Naturalization Service (INS) has said that Investors who knowingly establish a commercial enterprise in order to evade U.S. immigration laws may be fined up to $250,000 and jailed for up to five years. The INS can terminate the Investor's Greencard if it determines that the investment was fraudulent, the enterprise was not established, the required amount not invested, or the enterprise not sustained by the Investor.

Prospective Investors should consult legal counsel before attempting to deal with the complex question involved in an Investor Visa Application. DBEDT and Hawaii immigration attorneys have closely followed the drafting and finalizing of government regulations relating to the Investor Visa Program, and have contacted senior INS Officials regarding Investor Visa policy and procedure. The members of the American Immigration Lawyers Association-Hawaii Chapter (AILA) can provide expert advice on processing Investor Visa Applications.

AILA and other immigration attorneys will prepare all required immigration forms and documents, as well as all supporting information necessary to document the investment. Ninety days before the second anniversary of the issuance of the conditional Greencard to the Investor, your attorney will assist in petitioning the INS for full Greencard status and assist the Investor and family members in eventually obtaining U.S. citizenship.

The state of Hawaii in its entirety has been designated a Regional Center, established primarily to promote increased export sales, as provided under U.S. law. DBEDT has been designated at the Regional Center Authority.

Only 300 visas per year for the period ending September 10, 1998 will be made available to Regional Center Authorities throughout the U.S. Immigrant Investors, including their spouses and unmarried children under 21 years of age may qualify for these visas.

With the designation of the entire state as a Regional Center, the Immigrant Investor's petition may now contain evidence that the investment both directly and indirectly will create ten new jobs, using econometrically or statistically valid methodologies. Revenues generated by the qualifying commercial enterprise must result in exports, yet the commercial enterprise need not be engaged directly in generating exports of goods and services. To establish a relationship to exports, the applicant must demonstrate a reasonable connection between the commercial enterprise and the production of exports.

DBEDT has pre-qualified twenty (20) industries which have been identified as export-related. Investors in these industries can demonstrate indirect job creation with relative ease.

The State of Hawaii's Strategic Development Corporation's (HSDC) Board of Directors authorizes and approves investment in limited partnerships. HSDC works with Hawaii's private sector to form limited partnerships (or holding companies, managed by experienced general partners). HSDC may co-invest with foreign investors in two or more clearly identified projects or subsidiary operations. The state of Hawaii and the Investors would be limited partners. As long as the flow of funds and the jobs created can be clearly traced to the foreign investor, such limited partnerships would satisfy the requirements for the Foreign Entrepreneur Visa Program.

Immigrant Investors are encouraged to work with private venture capital groups. The HSDC will provide a listing of these businesses to interested investors.

If the Immigrant Investor is a limited partner and the limited partnership agreement provides the petitioner with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act, the limited partner will be considered sufficiently engaged in the management of the new commercial enterprise.

To ensure that a limited partner seeking benefits under section 203(b)(5) of the Act is not maintaining a purely passive role in regard to the investment, but is actually engaged in direct management or policy-making activities, the alien must not only establish that the limited partnership agreement provides him or her with such rights, powers, and duties, but also that he or she actually has exercised, or is actively in the process of exercising, these rights and powers.

1. Investor established a "new commercial enterprise" on or after November 29, 1990. A "new commercial enterprise" may consist of:

a. the creation of an original business

b. the purchase of an existing business and its simultaneous or subsequent restructuring or organization, such that a new commercial enterprise results

c. the expansion of an existing business through the investment of the required amount of capital, bringing about a substantial change of at least 140% increase in the number of employees and/or net worth of the company.

d. investment of the required amount of capital in a troubled business, such that the number of employees is maintained at the pre-investment level for a period of two (2) years

2. The commercial enterprise may take the form of any for-profit activity formed for the ongoing conduct of a lawful business, such as a corporation, limited or general partnership, sole proprietorship, joint venture, holding company (including whole-owned subsidiaries), business trust, etc. Non-commercial activities, such as owning personal residence, do not apply.

3. Investor invests or actively is in the process of investing U.S. $1,000,000 in the enterprise ($500,000 for rural and high unemployment areas). ("Troubled business" or "expansion of existing business" excepted.)

4. Enterprise creates at least 10 full-time jobs for U.S. citizens, permanent residents, exclusive of Investor's spouse and children. The Hawaii Regional Center Authority, allows utilization of an employment multiplier to show both direct and indirect job creation.

5. Investment capital may consist of cash, equipment, inventory and other tangible property of indebtedness secured by business or personal assets of the Investor.

6. Multiple Investors are permissible, provided each Investor seeking a visa has invested the required amount and created the required number of full-time positions.

7. Investor personally manages the investment either through exercising day-to- day managerial control or through policy formulation and direction.

1. Immigrant visa will be issued to the Investor and his/her spouse and children.

2. Visa and lawful permanent resident "Greencard" issued is conditional for a two-year period.

3. Ninety days preceding the second anniversary of the conditional greencard issuance, Invest must file necessary documentation (Form I-829) with the INS to document fulfillment of all investment requirements in order to remove the conditional status of permanent residency. Failing to do so could result in the automatic termination of the permanent resident status of the Investor and his or her family. Deportation proceedings often follow such terminations.

An Investor Visa Application must be accompanied by sufficient evidence that the Investor has invested, or is actively in the process of investing, lawfully obtained capital in a new commercial enterprise which will create at least 10 full-time positions for U.S. workers. The following documents are examples of the basic evidence required by the U.S. Immigration and Naturalization Service (INS). Failure to supply necessary documents can result in extended processing delays, and denial of the Investor Visa Application.

1. To show a new commercial enterprise has been established in the United States:

a. Articles of Incorporation, Certificate of Merger or Consolidation, Partnership Agreement, Certificate of Limited Partnership, Joint Venture Agreement, Business Trust Agreement, organizational minutes and by-laws, lease agreement for the new enterprise, confirmation of bank account (indicating that the required funds have been transferred into the corporate account, or are committed to be transferred into the corporate account), or other similar organizational documents for the new commercial enterprise.

b. Certificate showing authority to do business in the State or municipality; such as a general excise license, corporate brochure for new enterprise, or a financial statement or, in the case of investment in an already-existing commercial enterprise:

c. Evidence that, on a date after November 29, 1990, the required amount of capital ($1,000,000 or $500,000) has been transferred to an existing business; and that the investment has resulted in a "substantial increase" in the net worth or number of employees of the business. The evidence must be in the form of Stock Purchase Agreements, Investment Agreements, Certified Financial Reports, Payroll Records, or any similar instruments, agreements, or documents showing the investment and subsequent, "substantial change" in either the net worth or number of employees of the business.

2. To show the Investor has invested, or is actively in the process of investing, the required amount of capital ($1,000,000 or $500,000):

a. Bank statement(s) showing amount(s) deposited in U.S. business accounts for the enterprise.

b. Evidence of assets which have been purchased for use in the U.S. enterprise, including invoices, sales receipts, and purchase contracts containing sufficient information to identify such assets, their purchase costs, date of purchase, and purchasing entity.

c. Evidence of monies transferred, or committed to be transferred, to the new commercial enterprise in exchange for shares of stock (voting or non-voting, common or preferred). Such stock may not include terms requiring the new commercial enterprise to redeem it at the holder's request.

or, in the case of borrowed funds,

d. Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing which is secured by assets of the Investor, other than those of the new enterprise, and for which the Investor is personally and primarily liable.

3. To show that the capital invested was obtained through lawful means:

a. Foreign business registration records.

b. Corporate, partnership, other organizational, and personal tax returns, including income, franchise, property (real, personal, and intangible), or any other tax returns filed with five years, both inside and outside the U.S., which were filed on behalf of the Investor.

c. Evidence identifying any other source of capital. or, if applicable,

d. Certified copies of any judgements or evidence of all pending government civil or criminal actions, governmental and administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgements against Investor from any court in or outside the United States within the past 15 years.

4. To show than ten (10) full-time positions (or the qualifying minimum under the regional center provisions) for U.S. workers will be created:

a. Relevant tax records, Form I-9, or other similar documents for ten (10) qualifying employees. List of employees currently on staff (including hire dates) with job titles. The investor should confirm how many positions are full-time (that is, at least 35 hours per week). The investor should also indicate which employees, if any are her or his relatives and identify each relative/employee's relationship to the Investor. Employee organizational chart, state or federal quarterly payroll contribution returns.

b. Comprehensive business plans showing that, due to the nature and projected size of the commercial enterprise, the need for no less than ten (10) qualifying employees will result, including approximate dates within the next two years when such employees will be hired.

c. When presented with evidence - such as a comprehensive business plan - the State of Hawaii DBEDT will provide the investor with a certification stating that the proposed direct job creation meets or exceeds the requirements of Hawaii's Regional Center Authority.

5. To show that investment in a "troubled business" meets the job creation requirements:

a. Evidence that the number of existing employees is being or will be maintained at no less than the pre-investment level for a period of at least two years. Tax records, Form I-9, or other relevant documents for the qualifying employees, and comprehensive business plan must be submitted in support of the Applicant.

6. To show that the Investor will take an active role in the investment:

a. Job title and description of duties of the Investor.

b. Evidence that the Investor is a corporate officer or member of the corporate board of directors.

or, if a partnership:

c. Evidence that Investor is engaged in either direct management or policy making activities. For purpose of this provision, the rights, powers, and duties normally granted to Limited Partners under the Uniform Limited Partnership Act will qualify an Investor.

7. If investment is in a targeted employment area:

a. In the case of a rural area, evidence that the new commercial enterprise is doing business outside of any standard metropolitan statistical area as designated by the Office of Management and Budget, or within any city or town having a population of 20,000 or more. DBEDT can also provide certifications for investors in rural areas.

b. In the case of a high unemployment area, evidence that the area in which the new enterprise is doing business has experienced an average unemployment rate of 150% of the national rate; or a certification from DBEDT stating that the area has been designated as "high unemployment area".

Finally, other documents such as product or service brochures, advertising copy, photographs of business office, building and/or equipment, customer orders/contracts, etc. would strengthen the Investor Visa Application.