Who Is Eligible For EB5?

Who is eligible for EB5? The EB5 Program allows qualified foreign investors (and their spouses and children under the age of 21) to obtain U.S. green cards if they fulfill specific requirements.

These are the I-526 requirements, as laid out by USCIS, that determine who is eligible for EB5:

Investors must make the required minimum investment amount (either $900k or $1.8 million) into a U.S. new commercial enterprise.
Their investment into the new commercial enterprise must create, or in some uncommon instances preserve, 10 permanent full-time jobs for U.S. workers.

A breakdown of these requirements needed for filing the I-526 Petition:

The first requirement states that foreign investors must make an investment of either $900k or $1.8 million, so what does it mean to make an investment and how does an investor qualify for the lower of the two amounts, the $900k rate?

How does a foreign investor make their capital investment? Once the investor finds a suitable project to invest in, they must then move their capital into a U.S. escrow account. In some cases, investors in the Direct Investment Program, may be able to count capital used to purchase equipment and other expenses for the business.

Here’s how to qualify for the lower minimum investment amount. An investor can choose either of the two EB5 Program pathways: the Direct Investment Program or the Regional Center Program. In order to qualify for the $900k investment rate, an investor must select a project located in a targeted employment area (TEA). TEA are geographical areas that are either rural or high-unemployment (as designated by the U.S. Department of Homeland Security).

What is a new commercial enterprise?

A new commercial enterprise (NCE) is any lawful business conducting for-profit activity (examples: sole proprietorship, limited partnership, corporation, joint venture, or business trust) and was established after November 29, 1990. Businesses established before that date can, in some cases, qualify if they are significantly expanded or restructured.

The second requirement involves job creation and depending on which pathway an EB5 investor selects, they will have slightly different job creation requirements.

Investors in the Direct Investment Program must create 10 direct jobs.

Direct jobs are employees working directly for the business.

Regional centers have easier job creation requirements. Investors in the Regional Center Program must create 10 direct, indirect or induced jobs.

Indirect jobs are jobs created in other businesses that supply goods or services to the EB5 project.
Induced jobs are created locally around the EB5 project area as a result of workers on the EB5 project spending money in the community.

A few more requirements that were not directly stated in the USCIS list include:

The EB5 investor must document the path of their funds and prove that they came from lawful sources for not only the $900k (or $1.8 million), but also the $50k-$80k in additional administrative fees.
The EB5 investor’s capital must be placed at risk. There cannot be any guarantees, there must be chance for loss as well as gain.
The EB5 investor must have some type of defined role in the new commercial enterprise. Oftentimes, Regional Center investors will take on a policy-maker role to fulfill requirements.
EB5 investors interested in qualifying for the lower minimum investment amount must have a valid targeted employment area designation at the time of making their investment.
EB5 investor’s project must be EB5 compliant.

Once an EB5 investor receives I-526 Petition approval they can apply for a U.S. visa and receive one when one becomes available. To learn more about your case, fill out our free, quick EB5 evaluation below.

Clare Lithgow