USCIS administers the EB-5 Program. Under this program, investors (and their spouses and unmarried children under 21) are eligible to apply for lawful permanent residence (become a Green Card holder) if they:

• Make the necessary investment in a commercial enterprise in the United States; and

• Plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.

This program is known as EB-5 for the name of the employment-based fifth preference visa that participants receive.

EB-5 investors must invest in a new commercial enterprise that was established:

• After Nov. 29, 1990; or

• On or before Nov. 29, 1990, that was:

• Purchased, and the existing business is restructured or reorganized in such a way that a new commercial enterprise results; or
• Expanded through the investment, resulting in at least a 40% increase in the net worth or number of employees.

A new commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business, including:

• A sole proprietorship;

• Partnership (whether limited or general);

• Holding company and its wholly owned subsidiaries (provided that each subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business);

• Joint venture;

• Corporation;

• Business trust;

• Limited liability company; or

• Other entity, which may be publicly or privately owned.

This definition does not include noncommercial activity, such as owning and operating a personal residence.

Capital Investment Requirements

Capital means cash and all real, personal, or mixed tangible assets owned and controlled by the immigrant investor. All capital will be valued at fair-market value in U.S. dollars.

The definition of capital does not include:

• Assets acquired, directly or indirectly, by unlawful means (such as criminal activities);

• Capital invested in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the immigrant investor and the new commercial enterprise;

• Capital invested with a guaranteed rate of return on the amount invested; or

• Capital invested that is subject to any agreement between the immigrant investor and the new commercial enterprise that provides the immigrant investor with a contractual right to repayment, except that the new commercial enterprise may have a buy back option that may be exercised solely at the discretion of the new commercial enterprise.

Minimum Investment Amount is $1,050,000 and $800,000 if the investment is made in a Targeted Employment Area. A targeted employment area can be either:

• A rural area; or

• An area that has experienced high unemployment (defined as at least 150% of the national average unemployment rate).

An EB-5 investor must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying employees.

• For a new commercial enterprise not located within a regional center, the new commercial enterprise must directly create the full-time positions to be counted. This means that the new commercial enterprise (or its wholly owned subsidiaries) must itself be the employer of the qualifying employees.

• A qualifying employee is a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the United States, including a conditional resident, temporary resident, asylee, refugee, or a person residing in the United States under suspension of deportation. This definition does not include immigrant investors; their spouses, sons, or daughters; or any noncitizen in any nonimmigrant status (such as an H-1B nonimmigrant) or who is not authorized to work in the United States.

• Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the regional center program, full-time employment also means employment of a qualifying employee in a position that has been created indirectly that requires a minimum of 35 working hours per week.

EB-5 Regional Centers

An EB-5 Regional Center by definition is an economic unit or entity that is involved in promoting economic growth for a particular region. It can be public, private, or a combination of both. It is regulated by the United States Citizenship and Immigration Services (USCIS) and allows a New Commercial Enterprise (NCE) in the U.S. to pool together capital from many investors into one EB-5 business.

The key difference between regional center investment and direct investment is the amount of involvement in the project. All investors, regional center or direct investment holders must act in a managerial or advisory capacity to the New Commercial Enterprise and be involved in decision making with an EB-5 business plan. However, through the regional center method, investors typically assume a more passive role through a limited partnership or limited liability company and allow the general partner to make most of the day-to-day decisions. Direct investments are typically smaller businesses and require oversight and day-to-day operations to be managed by the investor themselves.

The Regional Center program has been subject to fraud since its inception in 1992. The program has been canceled several times due to widespread fraud. Regional Centers are not necessarily vetted by U.S. government agencies to ensure they are legitimate. Other businesses market themselves as EB-5 qualifying investments without being designated a regional center at all. These fraudulent businesses collect foreign investors’ money and misuse it for their purposes. The money does not go towards creating jobs for United States workers or stimulating the United States economy, and thus does not qualify for the EB-5 immigration program. Foreign investors are left without their money and without the means of qualifying for United States residency. The program recently has temporarily been reinstated until 2027, and the CIS has instituted regulations for thorough oversight. Over one-third of the approved EB-5 Regional Centers have been terminated, leaving intending immigrants subject to removal, loss of investment funds, and involved in class actions suing bad actors in the industry.