What are the requirements?

Amount the investor has to invest for the EB-5 program.

The investor is required to invest a minimum of $1 million; however, if the investment is located in a Targeted Employment Area (TEA) or qualified rural area, then the EB-5 applicant may invest a reduced amount of $500,000. Most EB5WW investments are designated as TEA’s and qualify for the lower threshold investment. However, some are not located in a TEA and require the full $1,000,000 investment. EB-5 defines a high unemployment area as 150% of the national average unemployment level. A State’s letter that the area is a qualified high unemployment area is not sufficient it must be backed by verifiable statistical data demonstrating that the area qualifies.

The job creation requirement for every investor is ten new American jobs.

The investment from each foreign national EB-5 Investor must create at least ten new full-time American jobs. If the investment is not located in an approved Regional Center, the jobs must be directly within the specific entity that receives the EB-5 investment. If the investor uses a Regional Center to make the investment, the job creation requirement of ten jobs still exists; however, the investor may utilize both direct and indirect job creation to fulfill the USCIS job creation requirement. Additionally, the Regional Center may use reasonable economic methodologies to prove the indirect job creation.

The investor’s funds for the investment must be from a lawful source.

The investor must demonstrate that the capital is in fact from a legal source. For example, the funds cannot be derived from a criminal enterprise. An investor may receive a gift of funds; however, the USCIS will require information and will track the source of the funds from the person who granted the gift. Loans are also credible source of funds, but the investment in the enterprise cannot be used as collateral or be pledged in any way, and the loan must be a “real” commercially viable loan.

The investment must be at risk.

The EB-5 applicant’s capital investment must be truly at risk. Guarantees of return of any capital to an investor are strictly prohibited. This would include buying interest in houses or condominiums as this constitutes a redemption agreement. Any guarantee of the return of EB-5 capital investment will negate the “at risk” requirement of the EB-5 law and the investor’s petition will be denied. Further, there can be no redemption agreements or reserve accounts. The enterprise must meet the requirements as a new commercial enterprise.
A new business is defined as one that was formed after November 29, 1990; and it must be a for-profit enterprise formed for the ongoing conduct of any lawful business. Under certain circumstances, the law allows for expanding an existing business or saving American jobs by investing in a narrowly defined “troubled” business.

The law states the foreign national investor must participate in management of the new commercial enterprise.

The applicant must have some involvement in the management of the new commercial enterprise. This is the reason most Regional Centers investments are formed through limited partnerships; the act of being a participant in a limited partnership (L.P.) satisfies the USCIS requirement of having a role in management of the partnership. Nearly all L.P. ‘s require the limited partner to vote on certain key issues.

Must the investor qualify as an accredited investor?

Securities regulations dictate that investors must be sophisticated enough to understand the complex issues involved with an EB-5 investment. Regulation D of the (United States) Securities Act defines an "accredited" investor as an individual meeting at least one of the following conditions:

  • any natural person whose individual net worth (or joint net worth with that person’s spouse, if applicable) at the time of purchase exceeds $1,000,000; or
  • any natural person who had an individual income in excess of $200,000 or joint income with that person’s spouse in excess of $300,000 in each of the two most recent years and who reasonably expects an income in excess of $300,000 in the current year; or
  • any other “accredited investor” as that term is defined in Regulation D as adopted by the Securities and Exchange Commission; or
  • Has such knowledge and experience in financial and business matters that he or she is capable of evaluating the merits and risks of an investment in the Units, and of making an informed investment decision, and does not require the use of a Purchaser Representative.