Employment Creation, EB-5, Visa Requirements

The employment based visa classification EB-5, or “employment creation,” is so labeled because it is reserved for immigrants seeking to enter the U.S. for the purpose of engaging in a new commercial enterprise. Visas of this category are to be issued to immigrants actively investing in an enterprise which will benefit the U.S. economy by creating at least 10 full time jobs for U.S. citizens and/or other workers authorized to be employed in the U.S. (excluding nonimmigrants). See INA §203(b)(5). The investment, in theory, helps to create jobs for United States Citizens, permanent residents, and other immigrant aliens. The amount of money that the immigrant investor must invest is dependent upon the area in which the business is, or will be located.

The type of business in which the petitioner must invest is not restricted beyond the qualification that it must be a “commercial enterprise.” The term commercial enterprise refers to any “for-profit activity,” not including “non-commercial activity such as owning and operating a personal residence.” See Matter of Izummi (interim decision). “The required amount of capital must be placed at risk ‘for the purpose of generating a return on the capital placed at risk.’” In a survey conducted by the Government Accountability Office (GAO), the nature of businesses established span a wide range including hotels, manufacturing companies, restaurants, sales, real estate, farms, technological services groups, and many others.

The term capital refers to any “cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable.” See 8 CFR §204.6(e). Under normal circumstances, the amount of the investment required to qualify as an immigrant investor under this visa classification is $1,000,000. The Code of Federal Regulations, however, distinguishes a set of “target employment areas” in which the required capital is reduced to $500,000. See 8 CFR §204.6(f). A target employment area is defined as “an area, which at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 percent of the national average rate.” See 8 CFR §204.6(e).

Summary: In order to qualify for the EB-5 immigrant visa classification, the petitioner must show that (s)he has the required funds to actively invest in an enterprise that will create no less than 10 full time jobs for U.S. citizens or other qualified workers. Not only must the petitioner provide sufficient funds—acquired lawfully—but the petitioner must also take an active role in the enterprise in which (s)he invests.