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Every EB-5 case rests on three questions: is the money going into a qualifying business, is it enough money and is it genuinely at risk, and will the business create the jobs Congress asked for. The requirements below are the current ones, as rewritten by the EB-5 Reform and Integrity Act of 2022. Older figures still circulate widely online, so it is worth checking the date of anything you read.
You must invest in a new commercial enterprise, meaning any lawful for-profit entity formed for the ongoing conduct of business. That includes a sole proprietorship, a general or limited partnership, a corporation, a limited liability company, a business trust, a joint venture, or a holding company whose subsidiaries are each engaged in for-profit activity. It does not include non-commercial activity such as owning a personal residence.
The enterprise must have been established after November 29, 1990. A business formed on or before that date can still qualify, but only if you purchase it and restructure or reorganize it so that a new commercial enterprise results, or if your investment expands it enough to produce at least a 40 percent increase in its net worth or its number of employees. Contrary to a common belief, you do not have to found the business yourself. Investing in an enterprise someone else established is entirely permissible, and it is how most Regional Center cases are structured.
For petitions filed on or after March 15, 2022, the minimum investment is $1,050,000. That falls to $800,000 if the enterprise is principally doing business in a targeted employment area or, for Regional Center investors, in a qualifying infrastructure project. Both figures are indexed to inflation and are scheduled to rise on January 1, 2027 and every five years after that.
A targeted employment area is either a rural area or an area of high unemployment. Rural means outside a metropolitan statistical area and outside any city or town with a population of 20,000 or more. High unemployment means the census tract or group of contiguous tracts where the business principally operates has a weighted average unemployment rate of at least 150 percent of the national average. Since 2022 these designations are made by the Department of Homeland Security rather than by state agencies, which ended the practice of drawing long, thin tract combinations to qualify prosperous locations.
Capital means cash and all real, personal, or mixed tangible assets you own and control, valued at fair market value in U.S. dollars. Several things do not count:
A buy-back option exercisable solely at the discretion of the enterprise is permitted.
The capital must be genuinely at risk, with a real possibility of loss and a real chance of gain, and it must be expected to remain invested for at least two years. The full amount must reach the business actually responsible for creating the jobs. Administrative fees, management fees, legal fees, and similar costs must be paid on top of the minimum investment, not out of it.
This is the requirement that most often decides a case, and the one investors underestimate. You must trace your funds and show they were lawfully obtained. For petitions filed on or after May 14, 2022, that means business and tax records, foreign business registration documents, seven years of personal tax returns, evidence of any judgments or pending legal actions against you, and the identity of anyone transferring funds into the United States on your behalf.
Gifts and loans are expressly permitted, provided they were made in good faith and not arranged to disguise an impermissible source. Where you rely on gifted or borrowed money, the lawful source of the donor's or lender's funds must be documented as thoroughly as your own.
The investment must create at least ten full-time positions for qualifying U.S. workers. Full-time means at least 35 hours per week. Two employees may share one full-time position, but several part-time roles cannot be added together to make one. Jobs that are intermittent, seasonal, or transient do not count, although a job expected to last at least two years generally will.
A qualifying worker is a U.S. citizen, a lawful permanent resident, or another immigrant authorized to work in the United States, including an asylee, refugee, or conditional resident. It does not include you, your spouse, or your children, and it does not include anyone holding a nonimmigrant visa.
How the jobs are counted depends on the route you take. If you invest independently of a Regional Center, the enterprise or its wholly owned subsidiaries must directly employ the ten workers. If you invest through a Regional Center, indirect and induced jobs may be counted using accepted economic modeling, and up to 90 percent of the requirement can be met that way. Congress has placed limits on counting jobs generated by construction activity lasting less than two years.
An investor in a troubled business may rely on preserving jobs rather than creating them, maintaining employment at no less than the pre-investment level for at least two years. A troubled business is one that has existed for at least two years and has suffered a net loss during the 12 or 24 months before the petition's priority date equal to at least 20 percent of its net worth before that loss. The total is still ten: jobs created and jobs preserved are added together to reach the requirement.
EB-5 is not a passive investment. You must be engaged in the management of the enterprise, either through day-to-day managerial responsibility or through policy formulation. A properly structured limited partnership interest, with the policy-making rights limited partners ordinarily hold, satisfies this requirement, which is why pooled Regional Center investments work for people who have no wish to run a U.S. business.
These requirements are tested at two separate points. At the petition stage, you show that the investment has been made or is actively in the process of being made and that the business plan will produce the jobs. Roughly two years after you become a conditional resident, on Form I-829, you must show that the investment was sustained and that the jobs were in fact created or preserved. A case that looked sound at the first stage can fail at the second if the project drifts from its plan, which is why the quality of the underlying business matters as much as the quality of the paperwork.