USCIS administers the EB-5 Immigrant Investor Program, which was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a program first enacted as a pilot in 1992 and regularly reauthorized since then, investors may also qualify for EB-5 classification by investing through regional centers designated by USCIS based on proposals for promoting economic growth. On March 15, 2022, President Biden signed the EB-5 Reform and Integrity Act, which created new requirements for the EB-5 immigrant visa category and the Regional Center Program.
You must invest the required amount of capital in a new commercial enterprise
The investment must create full-time positions for at least 10 qualifying employees
You must establish that you are the legal owner of the capital invested
Capital must not be acquired by unlawful means
The new commercial enterprise must be established after Nov. 29, 1990 (or meet restructuring/expansion requirements)
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Regulatory Criteria
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. Immigrant investors must establish that they are the legal owner of the capital invested.
Examples
Standard investment: $1,050,000 (for petitions filed on or after 3/15/2022)
Targeted Employment Area (TEA) investment: $800,000 (rural areas, high unemployment areas, or infrastructure projects)
Capital can include cash, equipment, inventory, other tangible property, and promissory notes in certain circumstances
Job Creation Requirements
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. Full-time employment means a position that requires a minimum of 35 working hours per week.
Examples
Direct investment (non-regional center): must directly create 10 full-time positions
Regional center investment: can use direct or indirect job creation (up to 90% may be indirect)
Troubled business: may rely on job maintenance (employees at or above pre-investment level for 2 years)
New Commercial Enterprise
All EB-5 investors must invest in a new commercial enterprise established after Nov. 29, 1990, or an existing business that was restructured/reorganized into a new enterprise or expanded by at least 40% in net worth or employees.
Examples
Sole proprietorship, partnership (limited or general), corporation, LLC
Joint venture, business trust, holding company with wholly owned subsidiaries
Does NOT include noncommercial activity such as owning a personal residence
Targeted Employment Areas
A targeted employment area (TEA) qualifies for reduced investment of $800,000. A TEA can be a rural area or an area that has experienced high unemployment (at least 150% of the national average).
Examples
Rural area: outside MSA and outside cities/towns with population of 20,000+
High unemployment area: census tract(s) with weighted average unemployment at 150%+ of national average
Infrastructure projects administered by governmental entities also qualify
Immigrant Visa Set-Asides
The EB-5 Reform and Integrity Act created new EB-5 immigrant visa set-asides for qualified immigrant investors. Each fiscal year, a certain percentage of EB-5 immigrant visas are reserved for specific investment areas.
Examples
Rural Area investments: 20% of EB-5 visas set aside each fiscal year
High Unemployment Area investments: 10% of EB-5 visas set aside each fiscal year
Infrastructure Project investments: 2% of EB-5 visas set aside each fiscal year
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Application Process
Select Investment
Choose a qualifying new commercial enterprise and investment amount ($1,050,000 standard or $800,000 TEA).
Make Investment
Invest required capital and document lawful source of funds.
File I-526/I-526E
File Form I-526 (Standalone Investor) or Form I-526E (Regional Center Investor) with USCIS.
Petition Approval
USCIS reviews and approves the immigrant petition.
Immigrant Visa/AOS
File DS-260 for consular processing abroad, or Form I-485 to adjust status in the U.S.
Conditional Residence
Receive conditional permanent residence for 2 years upon admission or adjustment.
File I-829
Within 90 days before the 2-year anniversary, file Form I-829 to remove conditions.
Permanent Residence
Upon I-829 approval, conditions are removed and you receive permanent Green Card.
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Key Benefits
Path to permanent residency for investor and family
Spouse and unmarried children under 21 receive conditional permanent residence
No employer sponsor required - investor controls their immigration
Visa set-asides for rural, high unemployment, and infrastructure investments
Regional Center Program allows indirect job creation counting
Can file I-485 concurrently if visa is immediately available
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Documents Needed
Valid Passport
Evidence of Lawful Source of Funds
Evidence of Capital Investment
Business Plan for New Commercial Enterprise
Job Creation Evidence or Economic Analysis
Form I-526 or I-526E (Immigrant Petition)
Form I-829 (Petition to Remove Conditions)
Tax Returns and Financial Statements
Corporate Documents for Business Entity
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Frequently Asked Questions
What is the minimum investment amount?
For petitions filed on or after March 15, 2022, the standard minimum investment is $1,050,000. For investments in targeted employment areas (rural areas, high unemployment areas) or infrastructure projects, the minimum is $800,000. Future adjustments will be tied to inflation every five years, with the first adjustment effective for petitions filed on or after Jan. 1, 2027.
What is a 'qualifying employee' for job creation?
A qualifying employee is a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the United States, including conditional residents, temporary residents, asylees, and refugees. This definition does not include the immigrant investor, their spouse, sons, or daughters, or any alien in nonimmigrant status (such as H-1B).
What is the difference between direct and regional center investment?
For direct investment (not through a regional center), the new commercial enterprise must itself be the employer of the qualifying employees - all 10 jobs must be direct. For regional center investment, up to 90% of the job creation requirement may be met using indirect jobs (jobs created as a result of the enterprise but held outside of it).
What is a 'troubled business'?
A troubled business is one that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period before the priority date. The loss must be at least 20% of the troubled business' net worth before the loss. For troubled business investments, the investor may rely on job maintenance rather than job creation.
What is conditional permanent residence?
Upon admission to the United States with an EB-5 immigrant visa or adjustment of status, EB-5 investors and their derivative family members receive conditional permanent residence for a two-year period. You must file Form I-829 within 90 days before the second anniversary to remove conditions and obtain permanent residence.
What types of capital qualify for EB-5?
Capital means cash and all real, personal, or mixed tangible assets owned and controlled by the investor. Capital does NOT include: assets acquired by unlawful means, capital invested in exchange for debt arrangements, capital with guaranteed return, or capital with contractual right to repayment. Capital can include promissory notes in certain circumstances.
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Fees
Attorney Fee for I-526
$35,655 (Initial $10,655; $5,000/month)
USCIS Fee
$11,160
Attorney Fee for I-485
$1,500 (Principal), $850 (Dependent)
USCIS Fee for I-485
$1,440 (Adult), $950 (Child)
Attorney Fee for IVP
$1,500 (Principal), $850 (Dependent)
IVP Fee Each
$345
Removal of Condition Attorney Fee
$7,275 (Initial $3,275; $2,000/month)
USCIS Fee (Removal of Condition)
$9,525
Fees are estimates and may change. Contact us for a quote for your specific case.
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Hasan Legal PC attorneys handle USCIS petitions, family immigration, employment-based green cards, and naturalization across Washington DC, Virginia and Maryland.