Who Is Eligible for EB-5?

The investor must commit the minimum capital ($800,000 TEA or $1,050,000 non-TEA) to a new commercial enterprise. Capital must be “at risk” — subject to loss if the business fails. Guaranteed return arrangements disqualify the investment.

“Capital” includes cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by the investor’s assets. The full amount must be invested or in the process of being invested at the time the petition is filed.

The investment must create at least 10 full-time positions for qualifying U.S. workers. “Full-time” means at least 35 hours per week. “Qualifying workers” means U.S. citizens, permanent residents, or others authorized to work. The investor, spouse, and children do not count.

For regional center investments, jobs may be counted using economic methodology (indirect and induced jobs). For direct investments, only direct payroll positions count. Job creation must occur within approximately 2.5 years of the investor obtaining conditional residence.

Invested capital must be obtained through lawful means. USCIS applies the “preponderance of the evidence” standard. Acceptable sources include employment income, business profits, property sales, loans secured by personal assets, inheritances, gifts, and investment returns.

The investor must trace the fund path from lawful source through intermediate accounts to the new commercial enterprise. Gaps in the documentary trail are the most common reason for Requests for Evidence (RFEs).

For detailed documentation requirements, see the Source of Funds Guide.

The investor must be admissible under the grounds of inadmissibility in INA § 212(a). Grounds that may affect admissibility include criminal history, prior immigration violations, certain health conditions, security concerns, and public charge considerations.

Some grounds of inadmissibility have waivers available. An immigration attorney should evaluate any potential admissibility issues before filing.