EB5-Commercial Enterprise

Fifth Employment Based Preference/Investors (Employment Creation) (EB-5 Category) for Persons investing in a commercial enterprise that employs US citizens - Qualifications, Requirements and Application Procedure

Immigrants seeking to enter the US to engage in a  commercial enterprise that will benefit the US economy and create at least 10 full-time jobs. The basic investment requirement is $1 million, although the amount may be $500,000 if the investment is made in a targeted employment area. 

The employment must be for a U.S. worker not related to the alien entrepreneur, in a position requiring a minimum of thirty-five working hours per week. Job sharing between two or three workers is allowed, but combining part-time positions does not qualify as full-time employment.  

A commercial enterprise can be established in many ways, including creating an original business; buying and reorganizing an existing company; or by investing in an existing business without reorganizing or reincorporating if the infusion of capital results in a substantial change in the existing business. In certain cases, the USCIS will permit an alien investor to obtain EB-5 classification if he or she preserves, as opposed to creates, ten positions of U.S. workers by saving a troubled business. An intent to invest or prospective investment arrangements entailing no present commitment will not suffice to establish that the petitioner is actively in the process of investing.

To file the petition, the alien is required to submit evidence:

  • that the new commercial enterprise has been established in the U.S.
  • the petitioner has invested or is actively in the process of investing the requisite capital in the new commercial enterprise
  • the capital that the petitioner is investing, or has invested, was obtained through lawful means
  •  the new commercial enterprise has created, or will create, at least ten full-time positions for qualified employees, or, in the case of investment in a troubled business, evidence that the number of existing employees will remain at the same level as before the alien entrepreneur invested in the enterprise
  •  the petitioner is an active investor, and that he or she is or will be engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial control or through policy formulation and
  • in cases in which the alien entrepreneur has invested in a targeted area, the area where the new commercial enterprise will be doing business is either a rural area or a high unemployment area.

Successful visa applicants are granted conditional resident status which can be removed after two (2) years.