EB-5 requirements, explained clearly

Capital

Capital generally means cash, equipment, inventory, other tangible property, cash equivalents and certain indebtedness that is secured by assets the investor owns. Assets are valued at fair market value in U.S. dollars. The investor must own the capital being invested, and it must actually be committed to the enterprise rather than merely promised.

At risk

The capital must be placed at risk for the purpose of generating a return. In practice, this means the investor must accept a genuine possibility of losing some or all of the investment. Arrangements that guarantee a return, or guarantee that the capital will be repaid, are generally not permitted. The investment must also remain at risk for the period required by law and USCIS policy, which an attorney can confirm for a given filing.

Lawful source of funds

The investor must show that the capital was obtained through lawful means, such as employment income, business profits, the sale of property, or an inheritance, and must trace how it reached the enterprise. Gifts and loans can be lawful sources when properly documented. A loan used for the investment generally may not be secured by the assets of the enterprise being invested in. See source of funds and gift and loan funds.

For petitions filed on or after March 15, 2022, the minimum investment is $1,050,000. It is $800,000 when the investment is in a targeted employment area or a qualifying infrastructure project. These are minimums for the invested capital only; fees and other costs are separate. Current USCIS filing fees are listed on the USCIS fee schedule (opens in a new tab).

The investment must be made in a new commercial enterprise: a for-profit activity formed for the ongoing conduct of lawful business. It can take many legal forms, such as a corporation, limited partnership or limited liability company. In a regional center investment, the new commercial enterprise is usually a partnership or fund that pools investor capital, which it then deploys into a separate job-creating entity that carries out the project.

The investor must generally be engaged in the enterprise's management, either day to day or through policy formulation. For many regional center investors, the rights held as a limited partner or equivalent are typically treated as sufficient. Whether a particular structure qualifies is a legal question; see regional center vs. direct investment.

Each investor's capital must generally create at least 10 full-time positions for qualifying employees. Full-time means at least 35 hours per week. Qualifying employees generally exclude the investor and the investor's spouse and children. The petition presents a credible plan for the jobs; the I-829 later provides evidence that they were created.

Direct jobs

Positions held by people employed by the enterprise itself. In a direct (standalone) investment, only direct jobs count.

Indirect jobs

Positions created at businesses that supply goods or services to the project, such as contractors and vendors. These may be counted only in regional center investments.

Induced jobs

Positions created when workers spend their wages in the wider economy. These may also be counted only in regional center investments.

Regional center projects may estimate indirect and induced jobs using reasonable economic methodologies, usually set out in an economic impact report prepared for the project.

A targeted employment area (TEA) is either a rural area or a high-unemployment area. Investing in a TEA allows the reduced minimum amount, and certain TEA investments may also fall within a reserved visa category.

• Rural area: outside a metropolitan statistical area and outside the boundary of any city or town with a population of 20,000 or more.
• High-unemployment area: a census tract or group of tracts with unemployment at least 150% of the national average unemployment rate.

Since the 2022 Act, USCIS, rather than state governments, makes TEA determinations. Each fiscal year, 20% of EB-5 visas are reserved for rural investments, 10% for high-unemployment areas and 2% for infrastructure projects. See reserved visa categories.

Meeting the investment requirements is not enough on its own. The investor and each included family member must also be admissible, meaning that no ground of inadmissibility under U.S. immigration law applies to them, or that any applicable ground has been waived. Grounds of inadmissibility can relate to health, criminal history, past immigration violations and security, among other matters.

Admissibility is reviewed during the visa interview abroad or the adjustment of status process in the U.S. Anyone with prior visa refusals, overstays, arrests or similar history should discuss it with a qualified U.S. immigration attorney before investing.

• See how these requirements fit into each filing in the EB-5 process.
• Read the EB-5 program overview for the wider context.
• Begin assembling records with our source of funds guide.
• Understand what can go wrong in EB-5 investment risk.

To discuss how the requirements apply to you, you can request a consultation to be connected with appropriate qualified professionals. EB5 Circle does not provide legal, investment or tax advice.