Employment Green Card
Green Cards > Investor Green Card
Fifth Preference – Investors
Preference is conditional residency for individuals who invest $1,000,000 (or in
certain cases $500,000) in a new commercial enterprise that employs ten or more
U.S. citizens or authorized immigrant workers full-time. The applicant must be
involved in day-to-day management or policy formation of said commercial
enterprise. The specific standards for each criterion are discussed in the links
New Commercial Enterprise
commercial enterprise includes partnerships, holding companies and wholly-owned
subsidiaries of for-profit businesses. Note that the applicant does not need to
actually establish the commercial enterprise – it is enough to just “invest” the
required amount in a new commercial enterprise.
two ways to meet the “new” standard:
The relevant commercial enterprise is in a company formed after
November 29, 1990; or
If the relevant company was founded before November 29, 1990,
The company has been restructured or reorganized so a new
commercial enterprise results (although if the applicant causes a net loss of
jobs, that is grounds for disqualification); or
The company has been significantly expanded in terms of number of
employees or net worth. The increase for either net worth or number of
employees must be at least 40%. Note that for the 40% increase in net worth,
all of the money contributed by all investors, not just the applicant, can be
What is Investment for
the Purposes of the EB-5 category?
Determine Investment Amount
investment must be made after November 29, 2009 for the applicant to be eligible
for an EB-5. The standard requirement is USD $1,000,000 and the applicant must
have invested the amount, or be actively in the process of investing, that
amount. The investment money is valued in U.S. dollars at fair market value.
investment is made in a rural area with less than 20,000 people or in an area
that has experienced high unemployment of at least 50% of the national average,
then the applicant need only invest USD $500,000 to meet the EB-5 standard.
amount invested must be put towards only one commercial enterprise; an applicant
cannot count investments made to multiple businesses.
following count as investment: cash, inventory, property, equipment, cash
equivalents, and indebtedness secured by assets owned by the applicant, as long
as the applicant is personally and primarily liable and the assets of the new
commercial enterprise are not themselves used to secure the loan.
the following do not count as investment: a loan to the commercial enterprise
from the applicant; payment of partnership expenses; retained earnings.
investment money can come from funds in a joint bank account owned by spouses,
but not from any other kind of joint account (i.e. owned in common with other
Investment Must be “At Risk”
considered investment, the applicant must risk losing the funds or assets in
Promissory notes. The promissory note must be secured by the applicant’s
property because an unsecured note is not considered an investment. The
fair market value of the secured note and not the face value will determine
the official investment amount. Fair market value is determined at the time
of filing the EB-5 petition and is based on the fair market value of the
assets securing the note, whether the assets can be seized, the terms of the
note, and the discounted value of the note among other factors. Note that
the applicant must substantially complete payments on a signed promissory
note by the end of the two year conditional residency period which begins
after the application is approved.
Trusts. To use money from a trust, the funds must be fully available.
secured by the investment. Loans which use the investment as a security
cannot be counted towards the investment total.
Reserves. Money that is set aside and cannot be used by the new commercial
enterprise cannot be considered investment.
Redemption agreements. An investor cannot create an agreement granting
him/her the right to sell his/her interest back to the partnership before
all of the cash payments are made on the relevant promissory note.
Guaranteed interest payments/guaranteed returns. Promissory notes that
guarantee payment or returns do not count as qualifying investment, again
because the money is not at risk. Other examples that do not count as
investment include buy/sell options that set the price at something other
than fair market value, and any instrument that limits the amount of money
actually available to the new commercial enterprise.
owner cannot meet the “at risk” standard simply by placing money in the
company account, because he/she can easily remove it.
investor plans that minimize risk, such as guaranteed interest payments,
buy/sell options at fixed prices, etc., may be challenged by the government
as failing the “at risk” criterion.
applicant must show the source of the investment money and that such money
Partnerships and Multiple
it is acceptable to have multiple investors in the new commercial enterprise,
other than the applicant. All new full-time employee positions created in the
new commercial enterprise may be credited to the applicant.
limited partnership does qualify as a new commercial enterprise. It is also
acceptable for the applicant to invest in the partnership after its formation.
The relevant limited partnership agreement must give the investor rights and
duties in order for the partnership to qualify for EB-5 purposes. If the
limited partnership is an investment fund that funds various companies, then the
investor’s management is related to the fund, not those companies that are
How is job creation for
U.S. workers measured?
applicant must make full time jobs for at least 10 U.S. citizens, LPRs
(Legal Permanent Residents), asylees, beneficiaries of cancellation of
removal, and/or temporary residents. Individuals on a non-immigrant visa or
family members of the investor do not count. Independent contractors are
also not considered employees for the purposes of determining EB-5
jobs created must be full-time work (at least 35 hours per week). The
relevant inquiry is the job itself, not whether or not the individual
filling the position changes.
the investment only sustains current employees but does not create new
full-time positions, it does not meet this requirement, unless the
investment is made in a so-called “troubled business.” A troubled business
is one which has had net loss for one or two years of more than 20% of its
- If an
applicant invests with a participating regional center, he/she may count
indirect job creation (see discussion below, under “Investor Pilot
Types of Evidence
applicant is required to provide extensive documentation in order to demonstrate
that the application is eligible for EB-5 classification. We have set out below
an abbreviated list of some of the evidence required for demonstrating
eligibility as for EB-5 classification.
Articles of Incorporation
Documents showing authorization to do business in the relevant state
Statements; evidence of purchased assets; evidence of property transferred;
loan or mortgage agreements, etc.
Corporate, partnership and personal tax returns filed within 5 years;
Evidence relating to any other sources of capital, such as evidence from
sales of land or businesses.
Evidence related to applicant’s personal income during the past few years.
Nature of EB-5 Status
status is conditional for the first two years. Within 90 days of the completion
of the second year in that status, the applicant must request the removal of the
conditional status, using Form I-829. Note that the applicant does not need to
be physically in the United States to file this request. If this request is
approved, then the applicant will have permanent resident status that is not
subject to any conditions.
to remove the conditional nature of the EB-5, the applicant must show:
He/she invested or was actively investing the required amount;
He/she sustained the new commercial enterprise and the investment
substantially meets the capital investment requirement;
He/she created or can expect to create within a reasonable period of time
the ten full-time jobs for qualifying employees required by the statute.
if the applicant fails to meet any of the key standards for EB-5 classification
listed above, or the government determines that the new enterprise was
established only to evade immigration laws, then the government can cancel EB-5
status at any point during the two-year conditional period. An investor can be
deported if his/her EB-5 status is terminated. Additionally, note that an
applicant with a conditional EB-5 can still seek naturalization and such an
applicant’s naturalization petition must be reviewed within the time frame
required by the law for all other applicants.
Investor Pilot Program:
government has newly established a pilot program for investors which would allow
investment through regional centers with relaxed job creation requirements for
EB-5 classification. This program has a 3000 visa per year limit.
center must establish that it can participate in this pilot program by showing
how it will promote economic growth through, among other things, improved
regional productivity, job creation or increased domestic capital investment.
applicant under this regional pilot program must meet all of the usual
requirements for employment creation, except he/she can demonstrate that
investment in the regional center will create jobs indirectly beyond the
relevant commercial enterprise.
A list of regional centers is
located on the USCIS website at: