How can I tell if an existing business qualifies for the lower EB-5 investment?

The most efficient way is to contact the state government who will issue a letter verifying that the location of the business is in a Targeted Employment Area (TEA).

In addition to the issue of whether the existing business qualifies as a new commercial enterprise (NCE), you will need to determine if it will be principally doing business within a Targeted Employment Area (TEA), which is defined as either a rural area or an area where the unemployment rate is 50 percent greater than the national average. A rural area is defined as being outside of a metropolitan statistical area (MSA) and having a population of less than 20,000. Each state has authority to designate a TEA based upon the unemployment rate, but does not have the authority to designate a rural area. You should consult an expert on TEA matters, as this is probably not something you want to do yourself.

This is an issue of due diligence and you should conduct one. Upon gathering the information, you should be able to determine the right answer and whether you want to proceed or not. Generally, it is advisable that you should consult an EB-5 attorney to undertake this type of service and before proceeding with the investment.

The governor of each state has the authority to designate the department of government to determine the high unemployment areas of the state. You should check with the state where the business is located.

Most EB-5 attorneys you would retain can assist you with working with the appropriate state agency that determines Targeted Employment Areas, and will lead other professionals you may retain, like an economist, who can provide further assistance with a TEA designation.

Consult with an immigration lawyer specialist to see if it is a TEA or a rural area.

To qualify for the lower investment, the project must be located in either a rural area or in an economic distressed area. To determine if it is in a rural area, the project must not be located in a metropolitan statistical area and must not be located within a municipality that has a population greater than 20,000 people. The U.S. Census Bureau website provides maps of metropolitan statistical areas by each state. Also, it has a program on the website called the "American Fact Finder," where you can put in a street address and it allows you to determine if it is in a municipality that has no more than 20,000 people. As to the economically distressed area, you must show that you are located in a metropolitan statistical area and that the area has experienced an unemployment rate of 150 percent of the national average. You can find national and state unemployment rates on the website for the Bureau of Labor Statistics. Also, most states have online databases that have city, county and regional breakdowns of unemployment rates.

Each state makes the decision on what is a TEA based on the address. Some states have these online; others you have to file a request.

My best suggestion is to request from the business in which you have an interest in investing to produce a letter from the state in which the business resides that states that the census tract qualifies as a Targeted Employment Area and thus for the lower EB-5 investment. The letter should be issued in 2016 to be safe since the state will rely on 2015 unemployment numbers.