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Yes — but not by buying a house, a condominium or a rental building in your own name. Real estate is one of the most common destinations for EB-5 capital, and a great many green cards have been approved on the strength of real estate projects. What makes those cases work is not the property itself. It is the way the investment is structured and the number of American jobs the project creates.
EB-5 is a job creation program, not a property program. The law requires you to invest in a new commercial enterprise — a for-profit entity formed for the ongoing conduct of lawful business — and USCIS states expressly that this does not include noncommercial activity such as owning and operating a personal residence. You must also be engaged in the management of that enterprise, and the enterprise must create at least ten full-time jobs for qualifying U.S. workers.
A property bought and rented out fails on every count. There is no operating business, there is no management role of the kind the statute contemplates, and a rental property does not employ ten people. Buying an interest from an existing owner does not help either: USCIS treats a payment made to a departing shareholder as something other than a contribution of capital to the enterprise.
There is also a trap for anyone attracted by the idea of collecting a green card and a home in the same transaction. If you are guaranteed the right to own or use a particular asset in exchange for your capital — a condominium unit, for instance — the present value of that right is subtracted from the amount USCIS treats as capital placed at risk.
Nearly all EB-5 real estate cases run through a regional center. Investors put money into a new commercial enterprise, usually a limited partnership or a limited liability company, which pools the capital and then either lends it to, or takes an equity position in, the developer that is actually building the project. The developer — the job-creating entity — engages the construction trades, and the economic activity the project generates is what produces the ten jobs attributed to each investor.
This structural point matters more than it once did. Since March 15, 2022, pooled EB-5 investments seeking the benefits of the Regional Center Program—including indirect job creation—must be sponsored by a regional center. The earlier model in which multiple investors pooled capital outside the Regional Center Program for real estate projects is generally no longer available.
A standalone real estate investment remains possible, but it is a different animal. With no regional center behind it, the new commercial enterprise, or a wholly owned subsidiary of it, must itself be the employer of the ten qualifying workers. In practice that means a genuine operating business — a development, construction or property management company with real payroll — rather than a holding vehicle. It is a harder case to build, and one investor must carry the entire job requirement alone.
The minimum investment is $1,050,000, or $800,000 where the project sits in a targeted employment area — a rural area or an area of high unemployment — or qualifies as an infrastructure project. Those figures replaced the old $1,000,000 and $500,000 thresholds and are scheduled to be adjusted for inflation on January 1, 2027 and every five years thereafter. Administrative fees, management fees and legal fees are paid on top of the minimum; they cannot be carved out of it.
The capital must be genuinely at risk, with a real possibility of loss and a real chance of gain, and for petitions filed on or after March 15, 2022 it must be expected to remain invested for not less than two years. You may receive distributions of profit, and those distributions may begin before the jobs are created, but a return cannot be guaranteed and the distribution cannot be a return of your minimum qualifying investment. Money contributed in exchange for a note, bond, convertible debt or any other debt arrangement with the enterprise is not an investment at all.
Every dollar must be traced to a lawful source. Expect to provide several years of tax returns, together with business records, sale documents, bank records and other evidence needed to trace the funds from their lawful source to the investment. Gifts and loans are permitted, but they must be genuine and fully documented.
Ten full-time positions of at least 35 hours a week, filled by U.S. citizens, lawful permanent residents or others authorized to work here. You, your spouse and your children do not count, and neither do people holding nonimmigrant status.
In a regional center project, up to 90 percent of those positions may be indirect — jobs created as a result of the project rather than on the enterprise's own payroll — and they may be established through accepted economic modeling rather than payroll records. That flexibility is precisely why construction projects suit the program so well. Congress did, however, impose limits on how far jobs arising from construction activity lasting less than two years may be counted, so a project whose entire job case rests on a short build deserves careful reading.
You must be engaged in the management of the new commercial enterprise, either through day-to-day managerial responsibility or through policy formulation. The second route is the one almost every real estate investor takes. USCIS accepts that a limited partner is sufficiently engaged where the partnership agreement gives the investor the rights, powers and duties normally granted to limited partners under the Uniform Limited Partnership Act, and operating agreements for limited liability companies are ordinarily drafted to give members equivalent standing. You are not expected to run the construction site — but the operating documents do have to give you the governance rights the law assumes you hold.
Has the regional center filed, and ideally obtained approval of, a Form I-956F for this particular project, and does the offering you have been shown match it? How many of the projected jobs are direct and how many are modeled, and how much of the model depends on construction lasting less than two years? Where does your money sit in the capital stack relative to the developer's own equity and to any bank lending? Is the project fully financed, or does it depend on EB-5 money that has not yet been raised? What happens to your capital if the project is delayed past the point at which your conditions come up for removal? And is the site genuinely in a targeted employment area, so that the $800,000 figure actually applies?
Antao & Chuang can review a proposed real estate investment before you commit, assess whether it is likely to satisfy USCIS on structure, capital and job creation, document the lawful source of your funds, prepare and file the petition, and represent you through conditional residence and the removal of conditions. Where the investment itself calls for counsel licensed in the state where the property sits, we can work alongside them.