An Overview of EB-5 Requirements

by Daniel Scow

Since its inception, the EB-5 program is estimated to have pumped over $6.8 billion into the U.S. economy and added over 50,000 U.S. jobs through regional centers.[1] The EB-5 program is a pathway whereby immigrant investors and their families may obtain permanent residency in the United States by creating U.S. jobs.[2] This paper briefly discusses the technical requirements and application process to obtain U.S. residency through an EB-5 visa.

Technical Requirements

The EB-5 program has three central requirements: (1) invest capital of $500,000 or $1 million, (2) create a new commercial enterprise, and (3) create or preserve at least 10 full-time jobs for authorized workers.[3]

First, investors must apply capital—obtained from a lawful source—to job creation where there is a risk of gain or loss.[4] The amount of capital depends on where an investor invests. In targeted employment areas, the capital requirement is $500,000.[5] Targeted employment areas are: (i) rural areas with a population under 20,000, or (ii) high unemployment areas where the unemployment rate is 150 percent of the national average.[6] For other areas, the capital requirement is $1 million.[7] Most investments are made in metropolitan areas of high unemployment.[8]

Second, the capital must create a new commercial enterprise, [9] which means (i) creating an original business, (ii) restructuring an existing business, (iii) expanding an existing business, or (iv) saving a troubled business.[10] Additionally, investors must engage in the management of the new enterprise; purely passive investments do not qualify for EB-5 visas.[11]

Third, the invested capital must create or preserve 10 full-time jobs. Job creation is measured differently depending on whether investors invest in a project directly or invest in a regional center. For investors who invest directly into a business, the 10 full-time jobs must be created directly, meaning at least 10 people obtain work in an employer-employee relationship at the newly created business.[12] Alternatively, investors can invest in a regional center and use reasonable economic methodologies to estimate (i) indirect jobs created in the newly created business’s supporting industries and (ii) induced jobs created through direct or indirect employee spending.[13] Over 90 percent of all EB-5 investors have invested through regional centers because estimating indirect jobs relaxes this requirement.[14]

Application Process

To obtain U.S. residency, theinvestor submits Form I-526 with the petition fee and initial supporting documentation showing he or she has met the technical requirements.[15] Once approved, the investor receives a conditional two-year green card. Ninety days before the two-year conditional period ends, the investor files Form I-829 and pays a fee; if USCIS accepts the petition, then USCIS removes the conditions on the green-card and grants the investor permanent residency.[16]


By successfully proving these requirements, around 29,000[17] investors have obtained permanent residency through projects by regional centers and benefitted the United States on a macroeconomic level. [18] At a time when the U.S. government is struggling with overwhelming debt and high unemployment, the EB-5 program is a powerful tool the government should continue to leverage and expand.

[1] David Kay et. al., Economic Impacts of the EB-5 Immigration Program (2010-2011), Association to Invest in USA, http://iiusablog.org/wp-content/uploads/2013/08/IIUSA-IMPLAN-AUBER-Economic-Impacts-of-EB-5-Immigration-Program_2010-2011_FINAL-David-Kay.pdf.

[2] 8 U.S.C.§ 1153(b)(5).

[3] Id.

[4] 8 C.F.R. § 204.6(j).

[5] 8 U.S.C § 1153(b)(5)(B), See also 8 C.F. R. § 204.6(e), (f)

[6] Id.

[7] 8 U.S.C. § 1153(b)(5)(C).

[8] Telephone Interview with Rachel Lew, Managing Partner & Founder, Law Offices of Rachel H. Lew, eb5investors.com (December 4, 2013).

[9] 8 U.S.C. § 1153(b)(5)(A).

[10] 8 C.F.R. § 204.6(h)

[11] 8 C.F.R § 204.6(j)(5).

[12] See Adjudicator’s Field Manual, Chapter 22.4(a)(2)(A).

[13] See Id.

[14] Michael B. Sichter, Note: Pumping up America: Using the EB-5 Visa to Inject Entrepreneurial Steroids into a Struggling U.S. Economy, 79 UMKC L. Rev. 1007, 1008 (Summer 2011).

[15] 8 C.F.R. § 204.6(a)

[16] 8 C.F.R. § 216.6(a)

[17] Kay et. al., Supra, note 1.

[18] Telephone Interview with Rachel Lew, Managing Partner & Founder, Law Offices of Rachel H. Lew, eb5investors.com (December 4, 2013).

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