EB-5 Visa Requirements

construction_350-2EB-5 Qualifications

To qualify the EB-5 visa, there are certain thresholds that an investor must satisfy:

1. Capital Investment Requirements

Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars.

Required minimum investments are:

  • In general, the minimum qualifying investment in the United States is $1 million.
  • Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000.

A targeted employment area (TEA) is an area that, at the time of investment, is a rural area or an area experiencing unemployment of at least 150 percent of the national average rate.

A rural area is any area outside a metropolitan statistical area (as designated by the Office of Management and Budget) or outside the boundary of any city or town having a population of 20,000 or more according to the decennial census.

The investor need not commit his/her entire capital immediately, but the investment must substantially complete prior to the end of the 2-year conditional residency period.

  • Evidence may be used to prove your lawful income:
    1. Five years of personal income tax returns
    2. Personal bank account statements for the past 2-3 years
    3. Salary records
    4. Salary verification letter from current/previous employers
    5. Five years of business income tax returns if income was generated from the operation of your business
    6. Business registration documents and ownership if funding is from the operation of your business
    7. Articles of incorporation, share certificates and other like documentation if funding is from the operation of your business
    8. Business bank account reports for the past 2-3 years if funds are from the operation of your business
  • Evidence required for investment funds from a gift:
    1. Documentation proving funds from the donor to the investor
    2. Statement explaining the surrounding circumstances of the gift and why the gift was made
    3. Gift tax return, if any
    4. Documentation such as personal/business income tax return and ownership of business proving the donor’s financial background to demonstrate how he/she derived the funds that were gifted
  • Evidence required for investment funds from an inheritance:
    1. Statement of the relationship between the investor and the deceased
    2. A death certificate
    3. Documentation of the investor’s receipt of inherited funds
    4. Certification of payment of inheritance tax, if any
    5. If there is a lack of documentation tracing funds from the deceased’s estate to the investor, a statement of thorough explanation of the relationship, the amount inherited, and other circumstances concerning the inheritance is required
  • Evidence required for investment funds from transactions:
    • Sale of business
      1. Deeds
      2. Closing statements
      3. Bank account statements
      4. Documentation tracing funds from the closing of the transaction to the investor’s individual account
      5. Copy of the business registration before the sale and immediately after the sale
      6. Letter from the accounting firm that represented the investor in the sale, indicating the sale, sale price, and the identity of the buyer
      7. Business financial information such as evaluation from a certified accountant proving the value of the business
    • Sale of real estate
      1. Purchase agreement
      2. Final settlement statement
      3. Receipt of funds from the buyer to the investor
      4. Payment of real estate tax obligations
      5. Title transfer evidence
      6. Past five years personal income tax return proving funds in the purchase of the real estate that sold
    • Sale of stock
      1. Company’s incorporation documents or other company registration documents
      2. The share purchase agreement
      3. Evidence of the transfer of proceeds of the stock sale from the brokerage company to the investor’s account
      4. Payment of tax obligations of the proceeds of stock sale
      5. Stock transaction record
    • Investment funds from a loan (Only a loan secured by your assets as opposed to property of the commercial enterprise that you invested in is eligible.)
      1. Terms of the loan agreement
      2. Documentation proving that the loan transferred from the lender to you
      3. Lender’s business registration record, business income tax returns if the lender is a business or personal income tax return if the lender is an individual.

2. All EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise:

  • Established after Nov. 29, 1990, or
  • Established on or before Nov. 29, 1990, that is:
    1. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or
    2. Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs

A Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:

  • A sole proprietorship
  • Partnership (whether limited or general)
  • Holding company
  • Joint venture
  • Corporation
  • Business trust or other entity, which may be publicly or privately owned

This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.

It is important for the investor to acknowledge that a commercial enterprise does not include noncommercial activity such as owning and operating a personal residence.

3. Job Creation Requirements

  • Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.
  • Create or preserve either direct or indirect jobs:
    • Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.
    • Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.

Note: Investors may only be credited with preserving jobs in a troubled business.

A troubled business is an enterprise that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20 percent of the troubled business’ net worth prior to the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.

A qualified employee is a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) 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 Immigrant Investor Pilot Program, “full-time employment” also means employment of a qualifying employee in a position that has been created indirectly from investments associated with the Pilot Program.

A job-sharing arrangement whereby two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions or full-time equivalents even if, when combined, the positions meet the hourly requirement per week. The position must be permanent, full-time and constant. The two qualified employees sharing the job must be permanent and share the associated benefits normally related to any permanent, full-time position, including payment of both workman’s compensation and unemployment premiums for the position by the employer.