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Book outline for Policy Manual
  • Policy Manual
    • Search
    • Updates
    • Table of Contents
    • Volume 1 - General Policies and Procedures
    • Volume 2 - Nonimmigrants
    • Volume 3 - Humanitarian Protection and Parole
    • Volume 4 - Refugees and Asylees
    • Volume 5 - Adoptions
    • Volume 6 - Immigrants
      • Part A - Immigrant Policies and Procedures
      • Part B - Family-Based Immigrants
      • Part C - Adam Walsh Act
      • Part D - Surviving Relatives
      • Part E - Employment-Based Immigration
      • Part F - Employment-Based Classifications
      • Part G - Investors
        • Chapter 1 - Purpose and Background
        • Chapter 2 - Eligibility Requirements
        • Chapter 3 - Regional Center Designation, Reporting, Amendments, and Termination [Reserved]
        • Chapter 4 - Immigrant Petition by Alien Investor (Form I-526)
        • Chapter 5 - Removal of Conditions
        • Chapter 6 - Deference
      • Part H - Designated and Special Immigrants
      • Part I - Family-Based Conditional Permanent Residents
      • Part J - Special Immigrant Juveniles
      • Part K - CNMI Resident Status
    • Volume 7 - Adjustment of Status
    • Volume 8 - Admissibility
    • Volume 9 - Waivers and Other Forms of Relief
    • Volume 10 - Employment Authorization
    • Volume 11 - Travel and Identity Documents
    • Volume 12 - Citizenship and Naturalization
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  2. Policy Manual
  3. Volume 6 - Immigrants
  4. Part G - Investors
  5. Chapter 2 - Eligibility Requirements

Chapter 2 - Eligibility Requirements

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  • Guidance
  • Resources (19)
  • Appendices (2)
  • Updates (16)
  • History (5)

The immigrant investor category requires three main elements:

  • An investment of capital;

  • Engagement in a new commercial enterprise; and

  • Job creation.

Each element is explained in this chapter in the context of:

  • The standalone program and the Regional Center Program for petitions filed before March 15, 2022;

  • For standalone petitions filed on or after March 15, 2022; and

  • New Regional Center Program petitions filed on or after May 14, 2022.[1]

For the general requirements, the term immigrant investor in this part of the Policy Manual refers to any employment-based 5th preference (EB-5) investor-petitioner, whether investing through the standalone program or the Regional Center Program. Where distinctions between the two programs exist, the term standalone immigrant investor refers to petitioners using the standalone program, and the term regional center immigrant investor refers to petitioners using the Regional Center Program.

A. Investment of Capital

Congress created the immigrant investor category so the U.S. economy can benefit from an immigrant’s contribution of capital. This benefit is greatest when capital is at risk and invested in a new commercial enterprise that, because of the investment, creates at least 10 full-time jobs for U.S. workers. The regulations that govern the category define the terms capital and investment with this economic benefit in mind.[2]

1. Capital

The word capital does not mean only cash. Instead, the broad definition of capital takes into account the many different ways in which a person can make a contribution of financial value to a business.

The following table outlines how the EB-5 Reform and Integrity Act of 2022 refined the definition of capital.

Definition of Capital
For petitions filed before March 15, 2022 For petitions filed on or after March 15, 2022[3]
Capital includes cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the immigrant investor, provided the immigrant investor is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness.[4] All capital must be valued at fair market value in U.S. dollars. Congress has similarly defined “capital” as “cash and all real, personal, or mixed tangible assets owned and controlled by the . . . investor, or held in trust for the benefit of the [investor] and to which the [investor] has unrestricted access.”[5] Also consistent with past definitions, the statute now provides that capital must be valued at fair market value in U.S. dollars, in accordance with Generally Accepted Accounting Principles or other standard accounting practice adopted by the U.S. Securities and Exchange Commission, at the time it is invested.[6]

The immigrant investor must establish that they are the legal owner of the capital invested[7] and has obtained the capital through lawful means. USCIS does not consider as capital any assets acquired directly or indirectly by unlawful means, such as criminal activity.[8] As of May 14, 2022, gifts and loans to the investor are expressly permitted as capital, provided certain conditions are met.[9]

Promissory Notes

Capital can include the immigrant investor’s promise to pay (a promissory note), as long as the immigrant investor is personally and primarily liable for the promissory note debt and his or her assets adequately secure the note. Any security interest must be perfected[10] to the extent provided for by the jurisdiction in which the asset is located.[11] Further, the assets securing the promissory note:

  • Cannot include assets of the company in which the immigrant is investing;

  • Must be specifically identified as securing the promissory note; and

  • Must be fully amenable to seizure by a U.S. noteholder.[12]

The fair market value of a promissory note depends on its present value, not the value at any different time. In addition, to qualify as capital, nearly all of the money due under a promissory note must be payable within 2 years, without provisions for extensions.[13]

Investing Indebtedness

When investing indebtedness, an immigrant investor must demonstrate:

  • The immigrant investor is personally and primarily liable for the debt;

  • The indebtedness is secured by assets the immigrant investor owns; and

  • The assets of the new commercial enterprise are not used to secure any of the indebtedness.

The immigrant investor must have primary responsibility, under the loan documents, for repaying the debt used to satisfy his or her minimum required investment amount.[14]

The immigrant investor must also demonstrate that his or her own collateral secures the indebtedness, and that the value of the collateral is sufficient to secure the amount of indebtedness that satisfies the immigrant investor’s minimum required investment amount. Any indebtedness secured by the immigrant investor’s assets qualifies as capital only up to the fair market value of the immigrant investor’s pledged assets.

2. Investment

The immigrant investor is required to invest his or her own capital. The petitioner must document the path of the funds to establish that the investment was made, or is actively in the process of being made, with the immigrant investor’s own funds.[15] For petitions filed on or after March 15, 2022, the capital must be expected to remain invested for not less than 2 years.[16]

To invest means to contribute capital. A loan from the immigrant investor to the new commercial enterprise does not count as a contribution of capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the immigrant investor and the new commercial enterprise is not a capital investment.[17]

To qualify as an investment, the immigrant investor must actually place his or her capital at risk. The mere intent to invest is not sufficient.[18]

Purchasing a share of a business from an existing shareholder, without more, does not qualify, since the payment goes to the former shareholder rather than to the new commercial enterprise.

Guaranteed Returns

If the immigrant investor is guaranteed a return, or a rate of return, on all or a portion of their capital, then the amount of any guaranteed return is not at risk.[19] For the capital to be at risk, there must be a risk of loss and a chance for gain.

Additionally, if the investor is guaranteed the right to eventual ownership or use of a particular asset in consideration of the investor’s contribution of capital into the new commercial enterprise, the expected present value of the guaranteed ownership or use of such asset counts against the total amount of the investor’s capital contribution in determining how much money was placed at risk. For example, if the immigrant investor is given a right of ownership or use of real estate, the present value of that real estate is not counted as investment capital put at risk of loss.[20]

Nothing prevents an immigrant investor from receiving a return on his or her capital in the form of a distribution of profits from the new commercial enterprise. This distribution of profits may happen during the conditional residency period and may happen before creating the required jobs. However, the distribution cannot be a portion of the investor’s minimum qualifying investment and cannot have been guaranteed to the investor.

Redemption Language for Petitions Filed Before March 15, 2022

USCIS relies on regulatory language and precedent decisions to address redemption agreements. The regulatory definition of “invest” excludes capital contributions that are “in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement.”[21]

An agreement evidencing a preconceived intent to exit the investment as soon as possible after removing conditions on permanent residence may constitute an impermissible debt arrangement. [22] Funds contributed in exchange for a debt arrangement do not constitute a qualifying contribution of capital.[23] In general, the petitioner may not enter into the agreement knowing that he or she has a willing buyer at a certain time and for a certain price.[24]

Any agreement between the immigrant investor and the new commercial enterprise that provides the investor with a contractual right to repayment is an impermissible debt arrangement. In such a case, the investment funds do not constitute a qualifying contribution of capital.[25] Mandatory redemptions and options exercisable by the investor are two examples of agreements where the investor has a right to repayment. The impermissibility of such an arrangement cannot be remedied with the addition of other requirements or contingencies, such as conditioning the repurchase of the securities on the availability of funds; the delay of the repurchase until a date in the future (including after the adjudication of the Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829)); or the possibility that the investor might not exercise the right. In other words, repayment does not need to be guaranteed in order to be impermissible. It is the establishment of the investor’s right to demand a repurchase, regardless of the new commercial enterprise’s ability to fulfill the repurchase, that constitutes an impermissible debt arrangement.[26]

The following table describes certain characteristics that might be present in agreements and explains whether their inclusion creates an impermissible debt arrangement.

Characteristics of Redemption Provisions

Type of Provision

Description

Impermissible Agreement?

Mandatory redemptions

Arrangements that require the new commercial enterprise to redeem all or a portion of the petitioner’s equity at a specified time or upon the occurrence of a specified event (for example, once the conditions are removed on the petitioner’s permanent resident status) and for a specified price (whether fixed or subject to a specified formula).

USCIS considers this an impermissible debt arrangement. Such impermissible obligations are not subject to the discretion of the new commercial enterprise (although it may have some discretion regarding the timing and manner in which the redemption is performed).

Options exercisable by the investor

Arrangements that grant the petitioner the option to require the new commercial enterprise to redeem all or a portion of his or her equity at a specified time or upon the occurrence of a specified event (for example, once the conditions are removed on the petitioner’s permanent resident status) and for a specified price (whether fixed or subject to a specified formula).

USCIS considers this an impermissible debt arrangement.

Option exercisable by the new commercial enterprise

A redemption agreement between the immigrant investor and the new commercial enterprise that does not provide the investor with a right to repayment.

One example of such an agreement is a discretionary option held by the new commercial enterprise to repurchase investor shares. These options are typically structured similarly to options exercisable by the investor, except that the option is held and may be exercised by the new commercial enterprise. When executed, these options require an investor to sell all or a portion of his or her ownership interest back to that entity.

USCIS generally does not consider these arrangements to be impermissible debt arrangements.[27]

However, such an option may be impermissible if there is evidence the parties construct it in a manner that effectively converts it to a mandatory redemption or an option exercisable by the investor (considered a debt arrangement). For example, an arrangement would be impermissible if ancillary provisions or agreements obligate the new commercial enterprise to either (a) exercise the option (at a specified time, upon the occurrence of a specified event, or at the request of the investor) or (b) if it chooses not to exercise the option, liquidate the assets and refund the investor a specific amount.

Redemption Language for Petitions Filed on or after March 15, 2022

On March 15, 2022, Congress enacted specific statutory provisions relating to agreements between the immigrant investor and the new commercial enterprise. For petitions filed on or after March 15, 2022, capital does not include:

  • Capital invested in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the investor and the new commercial enterprise;

  • Capital invested with a guaranteed rate of return on the amount invested by the investor; or

  • In general, invested capital that is subject to any agreement between the investor and the new commercial enterprise that provides the investor with a contractual right to repayment, such as a mandatory redemption at a certain time or upon the occurrence of a certain event, or a put or sell-back option held by the investor, even if such contractual right is contingent on the success of the new commercial enterprise, such as having sufficient available cash flow.[28]

However, the new statutory definition of capital includes (in other words, does not prohibit) capital invested that:

  • Is subject to a buy back option that may be exercised solely at the discretion of the new commercial enterprise; and

  • Results in the investor withdrawing their petition unless the investor has fulfilled their sustainment period and other program requirements.[29]

Business Activity

An immigrant investor must provide evidence of the actual undertaking of business activity. Merely establishing and capitalizing a new commercial enterprise and signing a commercial lease are not sufficient to show that an immigrant investor has placed his or her capital at risk.[30] Without some evidence of business activity, no assurance exists that the funds will be used to carry out the business of the commercial enterprise.[31]

Made Available

The full amount of the investment must be made available to the business​(​es​)​ most closely responsible for creating the employment upon which the petition is base​d​.[32] ​In the regional center context, the immigrant investor must establish that the capital was ​invested into the new commercial enterprise and ​that the full amount ​was subsequently made available to the job-creating business(es), if separate.​ ​

In cases with a separate job-creating entity or entities, ​the payment of ​​administrative fees, management fees, attorneys’ fees, finders’ fees, syndication fees, ​and​ other types of expenses or costs ​by ​the new commercial enterprise ​that erode the amount of capital ​made available to the job​-​creating entity ​do not count toward the minimum required investment amount.[33] The payment of these fees​ and expenses​ ​must ​be in addition to the ​minimum required​ capital investment​ amount​.

Sole Proprietors and Funds in Bank Accounts

A standalone investor who is operating a new commercial enterprise as a sole proprietor cannot consider funds in his or her personal bank account as capital committed to the new commercial enterprise. Funds in a personal bank account are not necessarily committed to the new commercial enterprise. The funds must be in business bank accounts.[34] However, even a deposit into a business account over which petitioner exercises sole control, without more, may not satisfy the at-risk requirement.[35]

Escrow Accounts

An immigrant investor’s money may be held in escrow until the investor has obtained conditional permanent resident status if the immediate and irrevocable release of the escrowed funds is contingent only upon:

  • Approval of the investor’s petition for classification under INA 203(b)(5); and

  • Visa issuance and admission to the United States as a conditional permanent resident, or approval of the investor’s Application to Register Permanent Residence or Adjust Status (Form I-485).

An immigrant investor’s funds may be held in escrow within the United States to avoid any evidentiary issues that may arise with respect to issues such as significant currency fluctuations[36] and foreign capital export restrictions.

Use of foreign escrow accounts is not prohibited as long as the petition establishes that it is more likely than not that the minimum qualifying capital investment will be transferred to the new commercial enterprise in the United States upon the investor obtaining conditional permanent resident status.

When adjudicating the immigrant investor’s petition to remove conditions,[37] USCIS requires evidence verifying that the escrowed funds were released and that the investment was sustained in the new commercial enterprise for the period of the immigrant investor’s residence in the United States.

Deployment of Capital

Before the job creation requirement is met, a new commercial enterprise may deploy capital directly or through any financial instrument so long as applicable requirements are satisfied, including the following:

  • The immigrant investor must have placed the required amount of capital at risk for the purpose of generating a return on the capital placed at risk;

  • There must be a risk of loss and a chance for gain;

  • Business activity must actually be undertaken;

  • The full amount of the investment must be made available to the business(es) most closely responsible for creating the employment upon which the petition is based;[38] and

  • A sufficient relationship to commercial activity (namely, engagement in commerce, that is, the exchange of goods or services) exists such that the enterprise is and remains commercial.[39]

The purchase of financial instruments traded on secondary markets generally does not satisfy these requirements because such secondary market purchases generally:

  • Are not related to the actual undertaking of business activity;

  • Do not make capital available to the job-creating business; and

  • Represent an activity that is solely or primarily financial rather than commercial in nature.

Further Deployment After the Job Creation Requirement is Satisfied

Once the job creation requirement has been met and the investment capital is returned or otherwise available to the new commercial enterprise, the new commercial enterprise may further deploy such capital within a reasonable amount of time[40] in order to satisfy applicable requirements for continued eligibility.[41] The capital may be further deployed, as described above, into any commercial activity that is consistent with the purpose of the new commercial enterprise to engage in the “ongoing conduct of lawful business,”[42] including as may be evidenced in any amendments to the offering documents made to describe the further deployment into such activities.[43]

Consistent with precedent case decisions and existing regulatory requirements, further deployment must continue to meet all applicable eligibility requirements within the framework of the initial bases of eligibility,[44] including the same new commercial enterprise.[45] The further deployment does not need to remain with the same (or any) job creating entity or in a targeted employment area (TEA).

For example, if a new commercial enterprise associated with a regional center loaned pooled investment capital to a job-creating entity that created sufficient jobs through the construction of a residential building in a TEA, the new commercial enterprise, upon repayment of the loan that resulted in the required job creation, may generally further deploy the repaid capital anywhere in the United States or its territories (regardless of whether it would qualify as a TEA) into any commercial activity that satisfies applicable requirements such as one or more similar loans to other entities.

For regional center petitions filed on or after May 14, 2022, further deployment is permitted under the following conditions:

  • The new commercial enterprise has executed the business plan for a capital investment project in good faith without a material change;

  • The new commercial enterprise has created a sufficient number of new full-time positions to satisfy the job creation requirements of the program for all investors in the new commercial enterprise, either directly or indirectly, as evidenced by the methodologies set forth in the statute;[46]

  • The job creating entity has repaid the capital initially deployed in conformity with the initial investment contemplated by the business plan; and

  • The capital, after repayment by the job creating entity, remains at risk and it is not redeployed in passive investments, such as stocks or bonds.[47]

3. Required Amount of Investment

The immigrant investor must invest at least the standard minimum investment amount in capital in a new commercial enterprise that creates no fewer than 10 jobs for U.S. workers. An exception exists if the immigrant investor invests their capital in a new commercial enterprise that is principally doing business in and creates jobs in a TEA or, for regional center petitions filed on or after May 14, 2022, in an infrastructure project.

This means that the present fair market value, in U.S. dollars, of the immigrant investor’s lawfully-derived capital must be at least $1,000,000, or $500,000 if investing in a TEA for petitions filed before March 15, 2022.[48] For petitions filed on or after March 15, 2022, those amounts are $1,050,000 or $800,000 if investing in a TEA or infrastructure project, and will automatically increase January 1, 2027, and every 5 years thereafter.[49]

Immigrant investors may diversify their investment across a portfolio of businesses or projects, but only if the minimum investment amount is first placed in a single new commercial enterprise. In such a case, it is necessary to show how eligibility has been established (for example, the minimum investment amount, evidence of an at-risk investment,[50] and job creation) with respect to each job-creating entity at the time of filing.

For standalone investors, the capital may be deployed into a portfolio of wholly owned businesses, so long as all capital is deployed through a single commercial enterprise comprised of a holding company and its wholly owned subsidiaries and all jobs are created directly within that commercial enterprise (in other words, through the portfolio of wholly owned subsidiaries that received the capital through the holding company).

For example, for a petition filed before March 15, 2022, based on an investment in an area in which the minimum investment amount is $1,000,000, the standalone investor can satisfy the statute by investing in a holding company that deploys $600,000 of the investment toward one subsidiary that the holding company wholly owns, and $400,000 of the investment toward another subsidiary that the holding company wholly owns.[51] In this example, the two wholly owned subsidiaries would have to create an aggregate of 10 new jobs between them. However, a standalone investor cannot qualify by separately investing $600,000 in one commercial enterprise and $400,000 in a different commercial enterprise, since these enterprises would be separate rather than consisting of a singular commercial enterprise comprised of a holding company and its wholly owned subsidiaries.

In the regional center context, where indirect jobs may be counted, the commercial enterprise may create jobs indirectly through multiple investments in corporate affiliates or in unrelated entities, but the regional center investor cannot qualify by investing directly in those multiple entities. Instead, the regional center investor’s capital must still be invested in a single commercial enterprise, which can then deploy that capital to multiple job-creating entities as long as the portfolio of businesses or projects can create the required number of jobs.

4. Lawful Source of Funds

For Petitions Filed before May 14, 2022[52]

The immigrant investor must demonstrate by a preponderance of the evidence that the capital invested, or actively in the process of being invested, in the new commercial enterprise was obtained through lawful means.[53] Any assets acquired directly or indirectly by unlawful means, such as criminal activity, are not considered capital.[54] In establishing that the capital was acquired through lawful means, the immigrant investor must provide evidence demonstrating the direct and indirect source of his or her investment capital.[55]

As evidence of the lawful source of funds, the immigrant investor’s petition must be accompanied, as applicable, by:

  • Foreign business registration records;

  • Corporate, partnership, or any other entity in any form which has filed in any country or subdivision thereof any return described in this list, and personal tax returns, including income, franchise, property (whether real, personal, intangible), or any other tax returns of any kind filed within 5 years, with any taxing jurisdiction in or outside the United States by or on behalf of the immigrant investor;

  • Evidence identifying any other source(s) of capital; or

  • Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgments against the immigrant investor from any court in or outside the United States within the past 15 years.[56]

The immigrant investor is required to submit evidence identifying any other source of capital. Such evidence may include:

  • Corporate, partnership, or other business entity annual reports;

  • Audited financial statements;

  • Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing which is secured by the immigrant investor’s own assets, other than those of the new commercial enterprise, and for which the immigrant investor is personally and primarily liable;

  • Evidence of income such as earnings statements or official correspondence from current or prior employers stating when the immigrant investor worked for the company and how much income the immigrant investor received during employment;

  • Gift instrument(s) documenting gifts to the immigrant investor;

  • Evidence, other than tax returns,[57] of payment of individual income tax, such as an individual income tax report or payment certificate, on the following:

    • Wages and salaries;

    • Income from labor and service or business activities;

    • Income or royalties from published books, articles, photographs, or other sources;

    • Royalties or income from patents or special rights;

    • Interest, dividends, and bonuses;

    • Rental income;

    • Income from property transfers;

    • Any incidental income or other taxable income determined by the relevant financial department;

  • Evidence of property ownership, including property purchase or sale documentation; or

  • Evidence identifying any other source of capital.

For Petitions Filed on or after May 14, 2022[58]

Effective on May 14, 2022, the immigrant investor must submit the following evidence, as applicable, to demonstrate the lawful source of the invested funds and any funds used to pay administrative costs and fees:

  • Business and tax records, or similar records, including

    • Foreign business registration records; and

    • Corporate or partnership tax returns (or tax returns of any other entity in any form filed in any country or subdivision of such country);

  • Personal tax returns, including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind, filed during the past 7 years (or another period to be determined by the Secretary to ensure that the investment is obtained from a lawful source of funds) with any taxing jurisdiction within or outside the United States by or on behalf of the investor;

  • Any other evidence identifying any other source of capital or administrative fees; and

  • Evidence related to monetary judgments against the investor, including:

    • Certified copies of any judgments, and evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving possible monetary judgments against the investor from any court within or outside the United States; and

    • The identity of all persons who transfer into the United States, on behalf of the investor, any funds that are used to meet the capital requirement.[59]

As of May 14, 2022, by statute, gifts and borrowed funds are expressly permissible for petitions filed on or after that date, provided:

  • They were gifted or loaned to the investor in good faith; and

  • They were not gifted or loaned to circumvent any limitations imposed on permissible sources of capital, including, but not limited to, proceeds from illegal activity.[60]

Investors relying on gifted or borrowed funds must demonstrate the lawful source of those funds by submitting the evidence described above for the donor or, if not a bank, the lender.[61]

5. Targeted Employment Area

A TEA is a rural area or an area that has experienced high unemployment.[62] A rural area is any area other than an area within a standard metropolitan statistical area (MSA) (as designated by the Office of Management and Budget) or within the outer boundary of any city or town having a population of 20,000 or more based on the most recent decennial census of the United States.[63] For petitions filed before March 15, 2022, a high unemployment area is an area that has experienced unemployment of at least 150 percent of the national average rate.[64] For petitions filed on or after March 15, 2022, a high unemployment area is an area designated as such by the Secretary of Homeland Security under INA 203(b)(5)(B)(ii).

Congress provided for a reduced investment amount in a TEA to encourage investment in new commercial enterprises principally doing business in and creating jobs in areas of greatest need. For the lower capital investment amount to apply, the new commercial enterprise into which the immigrant invests or the actual job-creating entity must be principally doing business in the TEA.

A new commercial enterprise is principally doing business in the location where it regularly, systematically, and continuously provides goods or services that support job creation. If the new commercial enterprise provides such goods or services in more than one location, it will be principally doing business in the location most significantly related to the job creation.

Factors considered in determining where a new commercial enterprise is principally doing business include, but are not limited to, the location of:

  • Any jobs directly created by the new commercial enterprise;

  • Any expenditure of capital related to the creation of jobs;

  • The new commercial enterprise’s day-to-day operation; and

  • The new commercial enterprise’s assets used in the creation of jobs.[65]

Investments through regional centers allow the immigrant investor to seek to establish indirect job creation. In these cases, the job-creating entity, rather than the new commercial enterprise, determines where the entity is principally doing business. The job-creating entity must be principally doing business in the TEA for the lower capital investment amount to apply.[66]

To demonstrate that the area of the investment is a TEA, the immigrant investor must demonstrate that the TEA meets the statutory and regulatory criteria by submitting:

  • For rural areas, evidence that the area is not located within any MSA as designated by the Office of Management and Budget, nor within any city or town having a population of 20,000 or more as based on the most recent decennial census of the United States;[67]

  • For high unemployment areas in petitions filed before March 15, 2022,[68] either:

    • A letter from the state government designating a geographic or political subdivision located outside a rural area but within its own boundaries as a high unemployment area;[69] or

    • Unemployment data for the relevant MSA or county;[70] or

  • For high unemployment areas in standalone petitions filed on or after March 15, 2022, a description of the census tract(s) and unemployment statistics that allows USCIS to make a case-specific designation as an area of high unemployment.[71] The area must consist of the census tract or contiguous census tract(s) in which the new commercial enterprise is principally doing business, and may also include any or all census tracts directly adjacent to such census tract(s).[72] The immigrant investor must demonstrate that the weighted average of the unemployment rate for the requested area (that is, the area comprised of multiple census tracts), based on the labor force employment measure for each census tract, is at least 150 percent of the national average unemployment rate.[73]

To promote predictability in the capital investment process, an officer identifies the appropriate date to examine in order to determine whether the immigrant investor’s capital investment qualifies for the lower capital investment amount according to the following table:

Targeted Employment Area Analysis

Petition Filing Timeframe

TEA Analysis

Petition filed on or after March 15, 2022

USCIS designates TEAs based on the Immigrant Petition by Standalone Investor (Form I-526) filing for standalone petitions and as part of the Application for Approval of an Investment in a Commercial Enterprise (I-956F), for regional center-affiliated projects.[74]

Petitions filed before March 15, 2022, and standalone petitions[75] filed on or after March 15, 2022

  • If the investment of capital is made into the new commercial enterprise, and made available to the job-creating entity in the case of investment through a regional center, before the filing of the Form I-526, then the TEA analysis should focus on whether the area in which the new commercial enterprise, or job-creating entity in the case of investment through a regional center, is principally doing business qualifies as a TEA at the time of the investment.

  • If the investment of capital has yet to be made into the new commercial enterprise, or made available to the job-creating entity in the case of investment through a regional center, at the time of the Form I-526 petition filing, then the TEA analysis should focus on whether the area in which the new commercial enterprise, or job-creating entity in the case of investment through a regional center, is principally doing business qualifies as a TEA at the time of the filing of the Form I-526 petition.

A geographic area that once qualified as a TEA may no longer qualify as employment rates or population increase over time. Immigrant investors occasionally request eligibility for the reduced investment threshold based on the fact that other immigrant investors who previously invested in the same new commercial enterprise qualified for the lower capital investment amount. The immigrant investor must establish, however, that at the time of investment or at the time of filing the immigrant petition, as applicable, the geographic area in question qualified as a TEA. An immigrant investor cannot rely on previous TEA determinations made based on facts that have subsequently changed.

For petitions filed on or after March 15, 2022, USCIS designations of TEAs are valid for 2 years from the date of investment for standalone investors or 2 years from the date a regional center properly files the Form I-956F for regional center investors and may be renewed for one or more 2-year periods.[76] An immigrant investor who has invested the amount of capital required for a TEA during an approved designation does not have to increase their investment if the designation expires.[77]

The area in question may qualify as a TEA at the time the investment is made or the Form I-526 immigrant petition is filed, whichever occurs first, but may cease to qualify by the time the Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829) is filed. The investor is not required to demonstrate that the area in question remains a TEA at the time the Form I-829 petition is filed. Changes in population size or unemployment rates within the area during the period of conditional permanent residence are acceptable, since increased job creation is a primary goal, which has been met if the area was a TEA at the time the investment was made, or the Form I-526 was filed.

A State’s Designation of a Targeted Employment Area Before March 15, 2022

For petitions filed before March 15, 2022, a state government could designate a geographic or political subdivision within its boundaries as a TEA based on high unemployment. Before the state could make such a designation, an official of the state must have notified USCIS of the agency, board, or other appropriate state governmental body that would be delegated the authority to certify that the geographic or political subdivision was a high unemployment area.[78] The state was then able to send a letter from the authorized body of the state certifying that the geographic or political subdivision of the MSA or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business had been designated a high unemployment area.[79]

Consistent with the regulations in effect before March 15, 2022, USCIS deferred to state determinations of the appropriate boundaries of a geographic or political subdivision that constitutes the TEA. However, for all TEA designations, USCIS still ensured compliance with the statutory requirement that the proposed area designated by the state had an unemployment rate of at least 150 percent above the national average. To do this, USCIS reviewed state determinations of the unemployment rate and assessed the method or methods by which the state authority obtained the unemployment statistics.

Acceptable data sources for calculating unemployment included U.S. Census Bureau data (including data from the American Community Survey) and data from the Bureau of Labor Statistics (including data from Local Area Unemployment Statistics).

There has never been a provision allowing a state to designate a rural area.

6. Infrastructure Projects

For regional center-based petitions filed on or after May 14, 2022, investors may qualify for the reduced investment amount by investing in an infrastructure project. These projects are ones:

  • That are administered by a governmental entity (such as a federal, state, or local agency or authority);

  • Where the governmental entity, which serves as the job-creating entity, contracts with a regional center or new commercial enterprise to receive capital investment under the regional center program from investors or the new commercial enterprise; and

  • That involve financing for maintaining, improving, or constructing a public works project.[80]

USCIS determines whether a project meets the definition of infrastructure project during adjudication of the Form I-956F.[81] A standalone investor cannot establish eligibility through an infrastructure project.

B. Comprehensive Business Plan

For standalone investor petitions filed at any time and regional center investor petitions filed before March 15, 2022, a comprehensive business plan should contain, at a minimum, a description of the business, its products or services (or both), and its objectives.[82]

The plan should contain a market analysis, including the names of competing businesses and their relative strengths and weaknesses, a comparison of the competition’s products and pricing structures, and a description of the target market and prospective customers of the new commercial enterprise. The plan should list the required permits and licenses obtained. If applicable, it should describe the manufacturing or production process, the materials required, and the supply sources.

The plan should detail any contracts executed for the supply of materials or the distribution of products. It should discuss the marketing strategy of the business, including pricing, advertising, and servicing. The plan should set forth the business’s organizational structure and its personnel’s experience. It should explain the business’s staffing requirements and contain a timetable for hiring, as well as job descriptions for all positions. It should contain sales, costs, and income projections and detail the basis of such projections.

Most importantly, the business plan must be credible.[83]

USCIS reviews business plans in their totality. An officer must determine if it is more likely than not that the business plan is comprehensive and credible. A business plan is not required to contain all of the detailed elements, but the more details the business plan contains, the more likely it is that USCIS considers the plan comprehensive and credible.[84]

As of May 14, 2022, regional centers file a Form I-956F before investors file their Immigrant Petition by Regional Center Investor (Form I-526E).[85] USCIS will provide more guidance on these applications on USCIS’ EB-5 Questions and Answers: EB-5 Reform and Integrity Act of 2022 webpage and later Policy Manual chapters.

C. New Commercial Enterprise

A new commercial enterprise is any commercial enterprise established after November 29, 1990.[86] Therefore, the immigrant investor can invest the required amount of capital in a commercial enterprise established after November 29, 1990, provided the remaining eligibility criteria are met.

The following table outlines the definition of new commercial enterprise, depending on when the petition was filed.

Petitions filed before March 15, 2022

Petitions filed on or after March 15, 2022

A commercial enterprise is any for-profit activity formed for the ongoing conduct of lawful business.[87] This broad definition is consistent with the realities of the business world and the many different forms and structures that job-creating activities can have.

Types of commercial enterprises include, but are not limited to:

  • Sole proprietorship;

  • Partnership (whether limited or general);

  • Holding company;

  • Joint venture;

  • Corporation;

  • Business trust; or

  • Other entity, which may be publicly or privately owned.[88]

A commercial enterprise can consist of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business. Noncommercial activities, including owning and operating a personal residence, do not qualify.[89]

The commercial enterprise must be formed to make a profit, unlike, for example, some charitable organizations.

The term new commercial enterprise means any for-profit organization formed in the United States for the ongoing conduct of lawful business, including sole proprietorship, partnership (whether limited or general), holding company and its wholly owned subsidiaries (provided that each subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business), joint venture, corporation, business trust, limited liability company, or other entity (which may be publicly or privately owned) that receives, or is established to receive, capital investment from immigrant investors.[90]

1. Enterprise Established on or before November 29, 1990

A new commercial enterprise also includes a commercial enterprise established on or before November 29, 1990, if the enterprise will be restructured or expanded through the immigrant’s investment of capital.

Purchase of an Existing Business that is Restructured or Reorganized

The immigrant investor can invest in a business that existed on or before November 29, 1990, provided that the existing business is simultaneously or subsequently restructured or reorganized such that a new commercial enterprise results.[91] Cosmetic changes to the décor, a new marketing strategy, or a simple change in ownership do not qualify as restructuring.[92]

However, a business plan that modifies an existing business, such as converting a restaurant into a nightclub or adding substantial crop production to an existing livestock farm, could qualify as a restructuring or reorganization.

Expansion of an Existing Business

The immigrant investor can invest in a business that existed on or before November 29, 1990, provided a substantial change in the net worth or number of employees results from the investment of capital.[93]

Substantial change is defined as a 40 percent increase either in the net worth or in the number of employees, so that the new net worth or number of employees amounts to at least 140 percent of the pre-expansion net worth or number of employees.[94]

Investment in a new commercial enterprise in this manner does not exempt the immigrant investor from meeting the requirements relating to the amount of capital that must be invested and the number of jobs that must be created.[95]

2. Pooled Investments in Original EB-5 Program

For petitions filed before March 15, 2022, a new commercial enterprise may be used as the basis for the petitions of more than one standalone immigrant investor. For petitions filed on or after March 15, 2022, pooled investments with more than one EB-5 investor are only permitted under the regional center program.[96] For petitions filed before March 15, 2022, each standalone immigrant investor must invest the required amount of capital and each immigrant investor’s investment must result in the required number of jobs. Furthermore, the new commercial enterprise can have owners who are not immigrant investors provided that the sources of all capital invested are identified and all invested capital has been derived by lawful means.[97]

3. Documentation of New Commercial Enterprise

Except for petitions filed by regional center investors on or after May 14, 2022,[98] to document the new commercial enterprise, the immigrant investor must present the following evidence, in addition to any other evidence that USCIS deems appropriate:

  • As applicable, articles of incorporation, certificate of merger or consolidation, partnership agreement, certificate of limited partnership, joint venture agreement, business trust agreement, or other similar organizational document for the new commercial enterprise;

  • A certificate evidencing authority to do business in a state or municipality or, if the form of the business does not require any such certificate or the state or municipality does not issue such a certificate, a statement to that effect; or

  • Evidence that, after November 29, 1990, the required amount of capital for the area in which an enterprise is located has been transferred to an existing business, and that the investment has resulted in a substantial increase in the net worth or number of employees of the business to which the capital was transferred.

This evidence must be in the form of stock purchase agreements, investment agreements, certified financial reports, payroll records, or any similar instruments, agreements, or documents evidencing the investment in the commercial enterprise and the resulting substantial change in the net worth or number of employees.[99]

4. Investment in New Commercial Enterprise

To show that the immigrant investor has committed the required amount of capital to the new commercial enterprise, the evidence presented may include, but is not limited to, the following:

  • Bank statements showing amounts deposited in U.S. business accounts for the enterprise;

  • Evidence of assets which have been purchased for use in the U.S. enterprise, including invoices, sales receipts, and purchase contracts containing sufficient information to identify such assets, their purchase costs, date of purchase, and purchasing entity;

  • Evidence of property transferred from abroad for use in the U.S. enterprise, including U.S. Customs and Border Protection commercial entry documents, bills of lading, and transit insurance policies containing ownership information and sufficient information to identify the property and to indicate the fair market value of such property;

  • Evidence of monies transferred or committed to be transferred to the new commercial enterprise in exchange for shares of stock (voting or nonvoting, common or preferred). Such stock may not include terms requiring the new commercial enterprise to redeem it at the holder’s request; or

  • Evidence of any loan or mortgage agreement, promissory note, security agreement, or other evidence of borrowing secured by the immigrant investor’s assets, other than those of the new commercial enterprise, and for which the immigrant investor is personally and primarily liable.[100]

5. Engagement in Management of New Commercial Enterprise

The immigrant investor must be engaged in the management of the new commercial enterprise, either through the exercise of day-to-day managerial responsibility or through policy formulation.[101]

To show that the immigrant investor is or will be engaged in the exercise of day-to-day managerial control or policy formulation, the immigrant investor must submit:

  • A statement of the position title that the immigrant investor has or will have in the new enterprise and a complete description of the position’s duties;[102]

  • Evidence that the immigrant investor is a corporate officer or a member of the corporate board of directors;[103] or

  • If the new enterprise is a partnership, either limited or general, evidence that the immigrant investor is engaged in either direct management or policymaking activities. The immigrant investor is sufficiently engaged in the management of the new commercial enterprise if the investor is a limited partner and the limited partnership agreement provides the investor with certain rights, powers, and duties normally granted to limited partners under the Uniform Limited Partnership Act.[104]

D. Creation of Jobs

The creation of jobs for U.S. workers is a critical element of the EB-5 category. It is not enough that the immigrant investor invests funds into the U.S. economy. The investment of the required amount of capital must be in a new commercial enterprise that creates[105] at least 10 jobs for qualifying employees. It is important to recognize that while the investment must result in the creation of jobs for qualifying employees, it is the new commercial enterprise that creates the jobs.[106]

Example: Standalone Investments Before March 15, 2022

Ten standalone immigrant investors seek to establish a hotel as their new commercial enterprise. The establishment of the new hotel requires capital to pay financing costs to unrelated third parties, purchase the land, develop the plans, obtain the licenses, build the structure, maintain the grounds, staff the hotel, as well as many other types of expenses involved in the development and operation of a new hotel.

The standalone immigrant investor’s capital can be used to pay part or all of these expenses. Each standalone immigrant investor’s investment of capital helps the new commercial enterprise (the new hotel) create 10 jobs. The 10 immigrants’ investments must result in the new hotel’s creation of 100 jobs (10 jobs for each investor’s capital investment) for qualifying employees.[107]

1. Bridge Financing

A developer or principal of a new commercial enterprise, either directly or through a separate job-creating entity, may use interim, temporary, or bridge financing, in the form of either debt or equity, prior to receipt of immigrant investor capital. If the project starts based on the interim or bridge financing prior to receiving immigrant investor capital and subsequently replaces that financing with immigrant investor capital, the new commercial enterprise may still receive credit for the job creation under the regulations.

Generally, the replacement of temporary or bridge financing with immigrant investor capital should have been contemplated prior to acquiring the original temporary financing. However, even if the immigrant investor financing was not contemplated prior to acquiring the temporary financing, as long as the financing to be replaced was contemplated as short-term temporary financing that would be subsequently replaced by more permanent long-term financing, the infusion of immigrant investor financing could still result in the creation of, and credit for, new jobs.

For example, if traditional financing originally contemplated to replace the temporary financing is no longer available to the commercial enterprise, a developer is not precluded from using immigrant investor capital as an alternative source. Immigrant investor capital may replace temporary financing even if this arrangement was not contemplated prior to obtaining the bridge or temporary financing.

The full amount of the immigrant’s investment must be made available to the business or businesses most closely responsible for creating the jobs upon which eligibility is based. In the regional center context if the new commercial enterprise is not the job-creating entity, then the full amount of the capital must be invested first in the new commercial enterprise and then made available to the job-creating entity or entities.[108]

2. Multiple Job-Creating Entities

If invested in a single new commercial enterprise and where the offering and organizational documents provide, an investor’s full investment may be distributed to more than one job-creating entity in a portfolio investment strategy. The record must demonstrate that the new commercial enterprise will create the requisite jobs through the portfolio of projects. In addition, each investor (or regional center for regional center-based petitions filed on or after May 14, 2022) must demonstrate that the full amount of money is made available to the business(es) most closely responsible for creating the employment upon which the petition is based, which may be one or multiple job-creating entities in a portfolio.

3. Full-Time Positions for Qualifying Employees

The investment into a new commercial enterprise must create full-time positions for not fewer than 10 qualifying employees.[109] An employee is defined as a person who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise. In the case of the Regional Center Program, an employee also means a person who provides services or labor in a job that has been created indirectly through investment in the new commercial enterprise.[110]

Qualifying Employee

For the purpose of the job creation requirement, the employee must be a qualifying employee. A qualifying employee is a U.S. citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized for employment in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or a noncitizen remaining in the United States under suspension of deportation. This definition does not include the immigrant investor, the immigrant investor’s spouse, sons, daughters, or any nonimmigrant.[111]

Full-Time Employment

For the purpose of the job creation requirement, the position must be a full-time employment position.[112] Full-time employment is defined as employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week.[113] In the case of the Regional Center Program, full-time employment also means employment of a qualifying employee in a position that has been created indirectly that requires a minimum of 35 working hours per week.

Two or more qualifying employees can fill a full-time employment position in a job-sharing arrangement. Job sharing is permissible so long as the 35 working hours per week requirement is met. However, the definition of full-time employment does not include combinations of part-time positions, even if those positions when combined meet the hourly requirement per week.[114]

A job-sharing arrangement whereby two or more qualifying employees share a full-time position counts as full-time employment provided the hourly requirement per week is met. To demonstrate that a full-time position is shared by more than one employee, the following evidence, among others, may be relevant:

  • A written job-sharing agreement;

  • A weekly schedule that identifies the positions subject to a job-sharing arrangement and the hours to be worked by each employee under the job-sharing arrangement; and

  • Evidence of the sharing of the responsibilities or benefits of a permanent, full-time position between the employees subject to the job-sharing arrangement.

Jobs that are intermittent, temporary, seasonal, or transient in nature do not qualify as permanent full-time jobs. However, jobs that are expected to last at least 2 years are generally not considered intermittent, temporary, seasonal, or transient in nature.

4. Measuring Job Creation

The immigrant investor seeking to enter the United States through the EB-5 program must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying employees. There are three methods of measuring job creation depending on the new commercial enterprise and where it is located.

Troubled Business

The U.S. economy benefits when the immigrant investor’s capital helps preserve the troubled business’s existing jobs. Immigrant investors investing in a new commercial enterprise that is a troubled business, must show that the number of existing employees in the troubled business is being, or will be, maintained at no less than the pre-investment level for a period of at least 2 years.[115] This applies in the regional center context as well.

The troubled business regulatory provision does not decrease the number of jobs required. An immigrant investor who invests in a troubled business must still demonstrate that 10 jobs have been preserved, created, or some combination of the two. For example, an investment in a troubled business that creates four qualifying jobs and preserves all six pre-investment jobs would satisfy the job creation requirement.

The regulatory definition of a troubled business is a business that has:

  • Been in existence for at least 2 years;

  • Has incurred a net loss for accounting purposes (determined on the basis of generally accepted accounting principles) during the 12-month or 24-month period prior to the priority date on the Immigrant Petition by Alien Investor (Form I-526); and

  • Had a loss for the same period at least equal to 20 percent of the troubled business’s net worth prior to the loss.[116]

For purposes of determining whether or not the troubled business has been in existence for 2 years, USCIS deems the successors-in-interest to the troubled business to have been in existence for the same period of time as the business they succeeded.[117]

New Commercial Enterprise Not Located Within a Regional Center

For a new commercial enterprise not located within a regional center, the full-time positions must be created directly by the new commercial enterprise to be counted. This means that the new commercial enterprise (or its wholly owned subsidiaries) must itself be the employer of the qualifying employees.[118]

New Commercial Enterprise Located Within a Regional Center

For regional center-based petitions filed before July 1, 2021, the date that the previous authorization of the regional center program lapsed, full-time positions can be created either directly or indirectly by a new commercial enterprise located within a designated regional center.[119] For regional center-based petitions filed on or after March 15, 2022, up to 90 percent of full-time positions may be created indirectly.[120] The general EB-5 program requirements still apply to investors investing in new commercial enterprises in the regional center context except that they may rely on indirect job creation. Employees filling indirect jobs do not work directly for the new commercial enterprise. Immigrant investors must use reasonable methodologies to establish the number of indirect jobs created.[121]

Direct jobs are those jobs that establish an employer-employee relationship between the new commercial enterprise and the persons it employs. For regional center-based petitions filed on or after March 15, 2022, direct jobs that count towards the requisite 10 percent of jobs include direct employees, including those estimated by economically and statistically valid methodologies, of both the new commercial enterprise and the job creating entity.[122]

Indirect jobs are those that are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise. For example, indirect jobs can include, but are not limited to, those held by employees of the job-creating entity (when the job-creating entity is not the new commercial enterprise) as well as employees of producers of materials, equipment, or services used by the new commercial enterprise or job-creating entity.

In addition, a sub-set of indirect jobs, known as induced jobs, are created when the new direct and indirect employees spend their earnings on consumer goods and services. Indirect jobs can qualify and be counted as jobs attributable to a new commercial enterprise associated with a regional center, based on reasonable methodologies, even if the jobs are located outside of the geographic boundaries of a regional center.

For petitions filed on or after May 15, 2022, Congress enacted certain limits on how jobs created by construction activity lasting less than 2 years can count towards estimated indirect and direct jobs.[123]

Due to the nature of accepted job creation modeling practices, USCIS relies upon reasonable economic models to determine that it is more likely than not that the indirect jobs are created. USCIS may request additional evidence that the indirect jobs created, or to be created, are full-time. USCIS may also request additional evidence to verify that the direct jobs (those held at the new commercial enterprise) will be or are full-time and permanent, which may include a review of W-2 forms or similar evidence.

Multiple Investors

For petitions filed on or after March 15, 2022, pooled investments with more than one EB-5 investor are only permitted under the regional center program.[124] For petitions filed before March 15, 2022, and all regional center-based petitions, when there are multiple investors in a new commercial enterprise, USCIS allocates the total number of full-time positions created for qualifying employees only to those immigrant investors who have used the establishment of the new commercial enterprise as the basis for their immigrant petition. An allocation does not need to be made among persons not seeking classification through the EB-5 category. Also, jobs need not be allocated to non-natural persons, such as corporations investing in a new commercial enterprise.[125] USCIS allocates full-time positions to immigrant investors based on the date their petition to remove conditions was filed, unless otherwise stated in the relevant documents.[126]

In general, multiple immigrant investors may not claim credit for the same job. An immigrant investor may not seek credit for the same specifically identified job position that has already been allocated to another immigrant investor in a previously approved case.

5. Evidence of Job Creation

To show that a new commercial enterprise will create no fewer than 10 full-time positions for qualifying employees, and except as provided below for regional center-based petitions filed on or after May 14, 2022, an immigrant investor must submit the following evidence:

  • Documentation consisting of photocopies of relevant tax records, Employment Eligibility Verification (Form I-9), or other similar documents for 10 qualifying employees, if such employees have already been hired; or

  • A copy of a comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than 10 qualifying employees will result within the next 2 years and the approximate dates employees will be hired.[127]

The 2-year period[128] is deemed to begin 6 months after adjudication of Form I-526. The business plan filed with the immigrant petition should reasonably demonstrate that the requisite number of jobs will be created by the end of this 2-year period.

Troubled Business

In the case of a troubled business, a comprehensive business plan must accompany the other required evidentiary documents.[129]

Regional Center-Based Petitions Filed before July 1, 2021

In the case of a new commercial enterprise within a regional center, the direct or indirect job creation may be demonstrated by the types of documents identified in this section along with reasonable methodologies.[130] If a regional center immigrant investor seeks to rely on jobs that will be created to satisfy the job creation requirement, a comprehensive business plan is required.

Additionally, if the regional center immigrant investor seeks to demonstrate job creation through the use of an economic input-output model, USCIS requires the investor to demonstrate that the methodology is reasonable. For example, if the inputs into the input-output model reflect jobs created directly at the new commercial enterprise or job-creating entity, USCIS requires the investor to demonstrate that the direct jobs input is reasonable. Relevant documentation may include Form I-9, tax or payroll records or if the jobs are not yet in existence, a comprehensive business plan demonstrating how many jobs will be created and when the jobs will be created.

If the inputs into the model reflect expenditures, USCIS requires the investor to demonstrate that the expenditures input is reasonable. Relevant documentation may include receipts and other financial records for expenditures that have occurred and a detailed projection of sales, costs, and income projections such as a pro-forma cash flow statement associated with the business plan for expenditures that will occur.

If the inputs into the model reflect revenues, USCIS requires the investor to demonstrate that the revenues input is reasonable. Relevant documentation may include tax or other financial records for revenues that have occurred or a detailed projection of sales, costs, and income projections such as a pro-forma income statement associated with the business plan for revenues that will occur.

In reviewing whether an economic methodology is reasonable, USCIS analyzes whether the multipliers and assumptions about the geographic impact of the project are reasonable. For example, when reviewing the geographic level of the multipliers used in an input-output model, the following factors, among others, may be considered:

  • The area’s demographic structure (for example, labor pool supply, work-force rate, population growth, and population density);

  • The area’s contribution to supply chains of the project; and

  • Connectivity with respect to socioeconomic variables in the area (for example, income level and purchasing power).

Regional Center-Based Petitions Filed on or after May 14, 2022

As of May 14, 2022, regional centers file a Form I-965F with USCIS before a regional center investor may file an individual petition.

6. Guidance on Tenant Occupancy Methodology

As of May 15, 2018, USCIS rescinded its prior guidance on tenant occupancy methodology. That update applies to all USCIS employees with respect to determinations of all Immigrant Petitions by Alien Investors (Form I-526), Petitions by Investors to Remove Conditions on Permanent Resident Status (Form I-829), and Applications for Regional Center Designation Under the Immigrant Investor Program (Form I-924) filed on or after that date. USCIS also gives deference to Form I-526 and Form I-829 petitions directly related to projects approved before May 15, 2018, absent material change, fraud or misrepresentation, or legal deficiency of the prior determination.[131]

Previously, on December 20, 2012, USCIS had issued policy guidance defining the criteria to be used in the adjudication of applications and petitions relying on tenant occupancy to establish indirect jobs.[132] In November 2016, USCIS published consolidated policy guidance on immigrant investors in this Policy Manual, including guidance on the tenant occupancy methodology. That guidance provided that investors could (1) map a specific amount of direct, imputed, or subsidized investment to new jobs, or (2) use a facilitation-based approach to demonstrate the project would remove a significant market-based constraint.

The first method requires mapping a specific amount of direct, imputed, or subsidized investment to new jobs such that there is an equity or direct financial connection between the EB-5 capital investment and the employees of prospective tenants. In practice, however, the construction of standard office or retail space alone does not lead to a sufficient connection for this type of mapping such that tenant jobs can be credited to the new commercial enterprise. The existence of numerous other factors, such as the identity of future tenants and demand for that type of business, makes it difficult to relate individual jobs to a specific space.

The second method looks at whether the investment removes a significant market-based constraint, referred to in the 2012 guidance as the “facilitation based approach.” In providing this approach as an option, USCIS explicitly allowed applicants and petitioners to avoid having to establish an equity or direct financial connection between the EB-5 capital investment and the employees of prospective tenants. As of May 15, 2018, however, USCIS determined that that allowance was ill-advised, because a direct financial connection between the EB-5 capital investment and the job creation is necessary to determine a sufficient nexus between the two. Reliance on a showing of constraint on supply or excess of demand by itself does not establish a causal link between specific space and a net new labor demand such that it would overcome the lack of a sufficient nexus.

Moreover, allowing applicants and petitioners to use prospective tenant jobs as direct inputs into regional growth models to generate the number of indirect and induced jobs that result from the credited tenant jobs leads to a more attenuated and less verifiable connection to the investment. There is also no reasonable test to confirm that jobs claimed through either tenant-occupancy methodology are new rather than relocated jobs such that they should qualify as direct inputs in the first place.

In sum, tenant-occupancy methodologies described in the 2012 Operational Guidance and previously incorporated into the Policy Manual result in a connection or nexus between the investment and jobs that is too tenuous[133] and therefore are no longer considered reasonable methodologies or valid forecasting tools under the regulations.[134]

As of May 14, 2022, regional center petitioners may include jobs estimated to be created under a methodology that attributes jobs to prospective tenants occupying commercial real estate created or improved by capital investments if the number of such jobs estimated to be created has been determined by an economically and statistically valid methodology and such jobs are not existing jobs that have been relocated.[135]

E. Burden of Proof

The petitioner or applicant must establish each element by a preponderance of the evidence.[136] The petitioner or applicant does not need to remove all doubt. Even if an officer has some doubt as to the truth, if the petitioner or applicant submits relevant, probative, and credible evidence that leads to the conclusion that the claim is more likely than not (that is, probably true), the petitioner or applicant has satisfied the preponderance of evidence standard.

F. Priority Dates

A priority date is the date the completed, signed petition is properly filed with USCIS.[137]

If an immigrant investor files an amended Form I-526E in the case of termination or debarment of the petitioner’s regional center, new commercial enterprise, or job-creating entity, the petitioner may use the priority date of their original petition for purposes of the amended Form I-526E filed on or after May 15, 2022, for which the petitioner qualifies.[138]

Footnotes


[^ 1] The effective date for the newly codified regional center program is 60 days after the March 15, 2022, enactment date. See Section 103(b)(2) of the EB-5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103 (PDF), 136 Stat. 49 (March 15, 2022).

[^ 2] See 8 CFR 204.6(e) (PDF). DHS published the EB-5 Immigrant Investor Program Modernization Rule, effective November 21, 2019. See 84 FR 35750, 35808 (July 24, 2019). However, that rule was vacated by Behring Regional Center LLC v. Wolf, 544 F. Supp. 3d 937 (N.D. Cal. 2021). Therefore, all links to regulations in this chapter are to those in effect prior to that rule.

[^ 3] The effective date for the newly codified regional center program is 60 days after the March 15, 2022, enactment date. See Section 103(b)(2) of the EB-5 Reform and Integrity Act of 2022, Div. BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103, 136 Stat. 49 (March 15, 2022).

[^ 4] See 8 CFR 204.6(e) (PDF).

[^ 5] See INA 203(b)(5)(D)(ii).

[^ 6] See INA 203(b)(5)(D)(ii).

[^ 7] See Matter of Ho (PDF), 22 I&N Dec. 206 (Assoc. Comm. 1998).

[^ 8] See S. Rep. No. 101-55 (1989). See 8 CFR 204.6(e) (PDF). See INA 203(b)(5)(D)(ii) and INA 203(b)(5)(L). For more discussion of lawful source of funds requirements, see Subsection 4, Lawful Source of Funds [6 USCIS-PM G.2(A)(4)].

[^ 9] See INA 203(b)(5)(L)(iii). For more discussion of gifts and loans, see Subsection 4, Lawful Source of Funds [6 USCIS-PM G.2(A)(4)].

[^ 10] Perfecting a security interest relates to the additional steps required to make a security interest effective against third parties or to retain its effectiveness in the event of default by the grantor of the security interest.

[^ 11] See Matter of Hsiung (PDF), 22 I&N Dec. 201, 202 (Assoc. Comm. 1998).

[^ 12] See Matter of Hsiung (PDF), 22 I&N Dec. 201, 202-03 (Assoc. Comm. 1998).

[^ 13] See Matter of Izummi (PDF), 22 I&N Dec. 169, 193-94 (Assoc. Comm. 1998).

[^ 14] See 8 CFR 204.6(e) (PDF). USCIS no longer follows its interpretation of indebtedness as including the investment of loan proceeds as of November 30, 2018, the date of the district court decision Zhang v. USCIS, 978 F.3d 1314 (D.C. Cir. 2020).

[^ 15] See Matter of Izummi (PDF), 22 I&N Dec. 169, 195 (Assoc. Comm. 1998).

[^ 16] See INA 203(b)(5)(A)(i).

[^ 17] See INA 203(b)(5)(D)(ii)(III)(bb). See 8 CFR 204.6(e) (PDF).

[^ 18] See 8 CFR 204.6(j)(2) (PDF).

[^ 19] See Matter of Izummi (PDF), 22 I&N Dec. 169, 180-188 (Assoc. Comm. 1998). For petitions filed on or after March 15, 2022, INA 203(b)(5)(D)(ii)(III)(cc) also applies.

[^ 20] See Matter of Izummi (PDF), 22 I&N Dec. 169, 184 (Assoc. Comm. 1998).

[^ 21] The full definition of invest is provided at 8 CFR 204.6(e) (PDF).

[^ 22] See Matter of Izummi (PDF), 22 I&N Dec. 169, 183-188 (Assoc. Comm. 1998).

[^ 23] EB-5 regulations contain two basic requirements in order to have a legitimate qualifying investment: (1) 8 CFR 204.6(e) (PDF) defines “invest” to require a qualifying (that is, non-prohibited) contribution of capital; and (2) 8 CFR 204.6(j)(2) (PDF) requires a qualifying use of such capital (placing such capital at risk for the purpose of generating a return). In order to satisfy the evidentiary requirement set forth at 8 CFR 204.6(j)(2) (PDF), an investor must first properly contribute capital in accordance with the definition of invest at 8 CFR 204.6(e) (PDF). If the contribution of capital fails to meet the definition of invest, it is not a qualifying investment, even if it is at risk for the purpose of generating a return.

[^ 24] See Matter of Izummi (PDF), 22 I&N Dec. 169, 186-187 (Assoc. Comm. 1998).

[^ 25] See Matter of Izummi (PDF), 22 I&N Dec. 169, 188 (Assoc. Comm. 1998). Matter of Izummi (PDF) addressed redemption agreements in general, and not only those where the investor holds the right to repayment. USCIS generally disfavors redemption provisions that indicate a preconceived intent to exit the investment as soon as possible, and notes that one district court has drawn the line at whether the investor holds the right to repayment. See Chang v. USCIS, 289 F. Supp.3d 177 (D.D.C. Feb. 7, 2018).

[^ 26] See Matter of Izummi (PDF), 22 I&N Dec. 169 (185-86) (Assoc. Comm. 1998).

[^ 27] See Matter of Izummi (PDF), 22 I&N Dec. 169, 188 (Assoc. Comm. 1998). See Chang v. USCIS, 289 F. Supp.3d 177 (D.D.C. Feb. 7, 2018).

[^ 28] See INA 203(b)(5)(D)(ii)(III).

[^ 29] See INA 203(b)(5)(D)(ii)(IV).

[^ 30] See Matter of Ho (PDF), 22 I&N Dec. 206, 209-210 (Assoc. Comm. 1998).

[^ 31] See Matter of Ho (PDF), 22 I&N Dec. 206, 210 (Assoc. Comm. 1998).

[^ 32] See Matter of Izummi (PDF), 22 I&N 169, 179, 189 (Assoc. Comm. 1998).

[^ 33] See Matter of Izummi (PDF), 22 I&N Dec. 169, 178-79 (Assoc. Comm. 1998).

[^ 34] See 8 CFR 204.6(j)(2) (PDF).

[^ 35] See Matter of Ho (PDF), 22 I&N Dec. 206, 210 (Assoc. Comm. 1998).

[^ 36] When funds are held in escrow outside the United States, USCIS reviews currency exchange rates at the time of adjudicating the Form I-526 petition to determine if it is more likely than not that the petitioner will make the minimum qualifying capital investment. With the Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829), USCIS reviews the evidence in the record, including currency exchange rates at the time of transfer, to determine that, when the funds were actually transferred to the United States, the petitioner actually made the minimum qualifying capital investment.

[^ 37] See Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829).

[^ 38] See Matter of Ho (PDF), 22 I&N Dec. 206, 209-210 (Assoc. Comm. 1998). See Matter of Izummi (PDF), 22 I&N Dec. 169, 179, 189 (Assoc. Comm. 1998).

[^ 39] See 8 CFR 204.6(e) (PDF).

[^ 40] Based on an internal review and analysis of typical EB-5 capital deployment structures, USCIS generally considers 12 months to be a reasonable amount of time to further deploy capital for most types of commercial enterprises but considers evidence showing that a longer period is reasonable for a specific type of commercial enterprise or into a specific commercial activity under the totality of the circumstances.

[^ 41] The requirement to make the full amount of capital available to the business(es) most closely responsible for creating the employment upon which the petition is based is generally satisfied through the initial deployment of capital resulting in the creation of the required number of jobs.

[^ 42] See 8 CFR 204.6(e) (PDF) for the definition of commercial enterprise.

[^ 43] This clarification is meant to address potential confusion among stakeholders regarding prior language about the “scope” of the new commercial enterprise while remaining consistent with applicable eligibility requirements.

[^ 44] See 8 CFR 103.2(b)(1). See Matter of Izummi (PDF), 22 I&N Dec. 169, 175-6, 189 (Assoc. Comm. 1998). See Chapter 4, Immigrant Petition by Alien Investor (Form I-526), Section C, Material Change [6 USCIS-PM G.4(C)].

[^ 45] See INA 203(b)(5)(A), which refers to a single new commercial enterprise: “Visas shall be made available . . . to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise.”

[^ 46] See INA 203(b)(5)(E)(iv) and INA 203(b)(5)(E)(v).

[^ 47] See INA 203(b)(5)(F)(v).

[^ 48] In a rule effective November 21, 2019, DHS raised the investment amounts to $1,800,000 and $900,000. See 84 FR 35750, 35808 (PDF) (July 24, 2019). On June 22, 2019, however, a federal court vacated that rule. See Behring Regional Center LLC v. Wolf, 544 F. Supp. 3d 937 (N.D. Cal. 2021). Therefore, all petitions filed before March 15, 2022, are subject to the original investment amounts set in 1990.

[^ 49] See INA 203(b)(5)(C).

[^ 50] The full amount of money must be made available to the business(es) most closely responsible for creating the employment upon which the petition is based. See Matter of Izummi (PDF), 22 I&N Dec. 169, 179 (Assoc. Comm. 1998).

[^ 51] See 8 CFR 204.6(e) (PDF).

[^ 52] The effective date for the new lawful source of funds provisions outlined in the EB-5 Reform and Integrity Act of 2022 is 60 days after the Act’s March 15, 2022, enactment date. See Section 103(b)(2) of Div. BB of the Consolidated Appropriations Act of 2022, Pub. L. 117-103, 136 Stat. 49 (March 15, 2022).

[^ 53] See 8 CFR 204.6(j)(3) (PDF). See Matter of Ho (PDF), 22 I&N Dec. 206, 210-11 (Assoc. Comm. 1998).

[^ 54] See 8 CFR 204.6(e) (PDF).

[^ 55] See 8 CFR 204.6(e) (PDF) and 8 CFR 204.6(j)(3) (PDF).

[^ 56] See 8 CFR 204.6(j)(3) (PDF).

[^ 57] As required under 8 CFR 204.6(j)(3)(ii) (PDF).

[^ 58] The effective date for these provisions outlined in the EB-5 Reform and Integrity Act of 2022 is 60 days after the Act’s March 15, 2022, enactment date. See Section 103(b)(2) of Div. BB of the Consolidated Appropriations Act of, 2022, Pub. L. 117-103, 136 Stat. 49 (March 15, 2022).

[^ 59] See INA 203(b)(5)(L).

[^ 60] See INA 203(b)(5)(L)(iii)(I).

[^ 61] See INA 203(b)(5)(L)(iii)(II).

[^ 62] See INA 203(b)(5)(B)(ii) (prior to March 15, 2022). See INA 203(b)(5)(D)(viii).

[^ 63] See INA 203(b)(5)(B)(ii) (prior to March 15, 2022) and INA 203(b)(5)(D)(vii). See 8 CFR 204.6(e) (PDF).

[^ 64] See INA 203(b)(5)(B)(ii) (prior to March 15, 2022). See 8 CFR 204.6(e) (PDF).

[^ 65] See Matter of Izummi (PDF), 22 I&N Dec. 169, 174 (Assoc. Comm. 1998).

[^ 66] See 8 CFR 204.6(j)(6) (PDF). See Matter of Izummi (PDF), 22 I&N Dec. 169, 171-73 (Assoc. Comm. 1998).

[^ 67] See 8 CFR 204.6(j)(6)(i) (PDF).

[^ 68] In a rule effective November 21, 2019, DHS eliminated the ability for states to designate TEAs and set rules for how USCIS would make those determinations. See 84 FR 35750, 35808 (PDF) (July 24, 2019). On June 22, 2019, however, a federal court vacated that rule. See Behring Regional Center LLC v. Wolf, 544 F. Supp. 3d (N.D. Cal. 2021). Therefore, all petitions filed before March 15, 2022, are subject to the previous rules on TEAs and may rely on state designations.

[^ 69] See 8 CFR 204.6(j)(6)(ii)(B) (PDF).

[^ 70] See 8 CFR 204.6(j)(6)(ii)(A) (PDF).

[^ 71] USCIS makes designations as part of the standalone petition adjudication. See INA 203(b)(5)(B)(ii). USCIS makes designations for regional center filings on or after May 14, 2022 as part of the Form I-956F adjudication. See INA 203(b)(5)(F). USCIS does not issue separate designation notices.

[^ 72] See 8 CFR 204.6(j)(6)(i) (PDF) and 8 CFR 204.6(j)(6)(ii)(B) (PDF).

[^ 73] See 8 CFR 204.6(j)(6)(i) (PDF).

[^ 74] See INA 203(b)(5)(F)(i) and INA 204(a)(1)(H)(i) requiring the filing of a Form I-956F before an investor in that offering can file a petition for classification.

[^ 75] For regional center petitions filed after May 14, 2022, USCIS makes the TEA determination at the project application stage and designations are valid for 2 years. See INA 203(b)(5)(B)(ii).

[^ 76] See INA 203(b)(5)(B)(ii)(IV).

[^ 77] See INA 203(b)(5)(B)(ii)(V).

[^ 78] See 8 CFR 204.6(j)(6)(i) (PDF).

[^ 79] See 8 CFR 204.6(j)(6)(ii)(B) (PDF).

[^ 80] See INA 203(b)(5)(D)(iv).

[^ 81] See INA 203(b)(5)(B)(iii)(I).

[^ 82] See Matter of Ho (PDF), 22 I&N Dec. 206, 213 (Assoc. Comm. 1998).

[^ 83] See Matter of Ho (PDF), 22 I&N Dec. 206, 213 (Assoc. Comm. 1998).

[^ 84] See Matter of Ho (PDF), 22 I&N Dec. 206, 213 (Assoc. Comm. 1998).

[^ 85] See INA 203(b)(5)(F).

[^ 86] See 8 CFR 204.6(e) (PDF).

[^ 87] See 8 CFR 204.6(e) (PDF).

[^ 88] See 8 CFR 204.6(e) (PDF).

[^ 89] See 8 CFR 204.6(e) (PDF).

[^ 90] See INA 203(b)(5)(D)(vi).

[^ 91] See 8 CFR 204.6(h)(2) (PDF).

[^ 92] See Matter of Soffici (PDF), 22 I&N Dec. 158 (Assoc. Comm. 1998).

[^ 93] See 8 CFR 204.6(h)(3) (PDF).

[^ 94] See 8 CFR 204.6(h)(3) (PDF).

[^ 95] See 8 CFR 204.6(h)(3) (PDF).

[^ 96] See INA 204(a)(1)(H)(i).

[^ 97] See 8 CFR 204.6(g) (PDF).

[^ 98] For regional center-based petitions filed on or after May 14, 2022, USCIS reviews the new commercial enterprise as part of the Form I-965F for regional center-affiliated projects. See INA 203(b)(5)(F).

[^ 99] See 8 CFR 204.6(j)-(j)(1) (PDF).

[^ 100] See 8 CFR 204.6(j)(2)(i)-(v) (PDF).

[^ 101] See 8 CFR 204.6(j)(5) (PDF).

[^ 102] See 8 CFR 204.6(j)(5)(i) (PDF).

[^ 103] See 8 CFR 204.6(j)(5)(i) (PDF).

[^ 104] See 8 CFR 204.6(j)(5)(iii) (PDF).

[^ 105] Job maintenance is also permitted under certain circumstances. See Subsection 4, Measuring Job Creation [6 USCIS-PM G.2(D)(4)].

[^ 106] See 8 CFR 204.6(j)(4)(i) (PDF).

[^ 107] See 8 CFR 204.6(j) (PDF) (stating that it is the new commercial enterprise that must create the 10 jobs).

[^ 108] See Matter of Izummi (PDF), 22 I&N Dec. 169, 179 (Assoc. Comm. 1998).

[^ 109] See 8 CFR 204.6(j) (PDF).

[^ 110] See INA 203(b)(5)(E)(iv) and INA 203(b)(5)(E)(v). See 8 CFR 204.6(e) (PDF).

[^ 111] See INA 203(b)(5)(A)(ii).

[^ 112] See INA 203(b)(5)(A)(ii).

[^ 113] See 8 CFR 204.6(e) (PDF).

[^ 114] See 8 CFR 204.6(e) (PDF).

[^ 115] See 8 CFR 204.6(j)(4)(ii) (PDF).

[^ 116] See 8 CFR 204.6(j)(4)(ii) (PDF).

[^ 117] See 8 CFR 204.6(e) (PDF).

[^ 118] See 8 CFR 204.6(e) (PDF).

[^ 119] See 8 CFR 204.6(j)(4)(iii) (PDF).

[^ 120] See INA 203(b)(5)(E)(iv)(I).

[^ 121] See 8 CFR 204.6(m)(1) (PDF) and 8 CFR 204.6(m)(7) (PDF). See INA 203(b)(5)(E)(v).

[^ 122] See INA 203(b)(5)(E)(iv)(I) and INA 203(b)(5)(E)(v).

[^ 123] See INA 203(b)(5)(E)(iv)(II) (limiting the percentage of estimated indirect jobs to 75 percent). See INA 203(b)(5)(E)(V)(II)(cc) (regarding the calculation of direct jobs).

[^ 124] See INA 204(a)(1)(H)(i).

[^ 125] See 8 CFR 204.6(g)(2) (PDF).

[^ 126] USCIS recognizes any reasonable agreement made among immigrant investors in regard to the identification and allocation of qualifying positions. See 8 CFR 204.6(g)(2) (PDF).

[^ 127] See 8 CFR 204.6(j)(4)(i) (PDF).

[^ 128] The 2-year period is described in 8 CFR 204.6(j)(4)(i)(B) (PDF).

[^ 129] See 8 CFR 204.6(j)(4)(ii) (PDF).

[^ 130] See 8 CFR 204.6(j)(4)(iii) (PDF).

[^ 131] See Chapter 6, Deference [6 USCIS-PM G.6].

[^ 132] See Operational Guidance for EB-5 Cases Involving Tenant-Occupancy, GM-602-0001, issued December 20, 2012.

[^ 133] See, for example, Matter of Izummi (PDF), 22 I&N Dec. 169, 179 (Assoc. Comm. 1998) (holding that the full amount of the money must be made available to the business(es) most closely responsible for creating the employment on which the petition is based).

[^ 134] See 8 CFR 204.6(j)(4)(iii) (PDF) and 8 CFR 204.6(m)(3) (PDF).

[^ 135] See INA 203(b)(5)(E)(v)(II).

[^ 136] See Matter of Chawathe (PDF), 25 I&N Dec. 369, 375-376 (AAO 2010). For general information, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].

[^ 137] See 8 CFR 204.6(d) (PDF).

[^ 138] See INA 203(b)(M)(v)(I). Priority date preservation was included in the EB-5 Modernization Rule, effective November 21, 2019. See 84 FR 35750, 35808 (PDF) (July 24, 2019). That rule, however, was vacated. See Behring Regional Center LLC v. Wolf, 544 F. Supp. 3d 937 (N.D. Cal. 2021).

Resources

Legal Authorities

INA 201 - Worldwide level of immigration

INA 202 - Numerical limitations on individual foreign states

INA 203 - Allocation of immigrant visas

INA 203(b)(5), 8 CFR 204.6 (PDF) - Employment creation immigrants

INA 204, 8 CFR 204 - Procedure for granting immigrant status

INA 216A, 8 CFR 216.6 - Conditional permanent resident status for certain alien entrepreneurs, spouses, and children

Pub. L. 117-103 (PDF) - Consolidated Appropriations Act of 2022 - Division BB - EB–5 Reform and Integrity Act of 2022

Forms

G-28, Notice of Entry of Appearance as Attorney or Accredited Representative

I-290B, Notice of Appeal or Motion

I-485, Application to Register Permanent Residence or Adjust Status

I-526, Immigrant Petition by Standalone Investor

I-526E, Immigrant Petition by Regional Center Investor

I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status

I-9, Employment Eligibility Verification

I-956, Application for Regional Center Designation

I-956F, Application for Approval of an Investment in a Commercial Enterprise

I-956G, Regional Center Annual Statement

I-956H, Bona Fides of Persons Involved with Regional Center Program

Other Materials

How to Use the USCIS Policy Manual Website (PDF, 2.99 MB)

Appendices

Appendix: Business Structures

This appendix provides a general overview of the most common business forms or structures of petitioning employers, agents, or sponsors filing an Immigrant Petition for Alien Workers (Form I-140) or Petition for Nonimmigrant Worker (Form I-129). These forms or structures are also relevant to the new commercial enterprises underlying an Immigrant Petition by Standalone Investor (Form I-526) or Immigrant Petition by Regional Center Investor (Form I-526E).

This appendix includes information on how different types of businesses are formed, their fundamental characteristics, the various tax forms that each business organization files with the Internal Revenue Service (IRS), and basic tax terms. Generally, each business form or structure discussed in this appendix should have an Employer Identification Number (EIN), sometimes also called a Federal Tax Identification Number, or IRS Tax Number.[1] An EIN is used to identify a business entity for IRS purposes.

State law generally governs the formation, operation, and dissolution of business entities. As each state has its own rules for business entities, an officer should refer to the relevant state statute or state authority’s website (such as the California Secretary of State’s Business Programs Division) if there is a specific question about a particular business entity.

A. Sole Proprietorship

1. Definition

A sole proprietorship is a for-profit business owned by one person (or a married couple, in some cases).[2] A sole proprietorship is “a business in which one person owns all the assets, owes all the liabilities, and operates in his or her personal capacity.”[3] Owners may operate on their own or may employ other people. The sole proprietorship is the simplest business form under which a person can operate a business. It is not a separate legal entity from its owner;[4] for example, the owner remains responsible for the business debts.

A sole proprietorship can operate under the name of its owner or it can elect to do business under a fictitious name. The fictitious name is simply a trade name and does not create a legal entity separate from the sole proprietor owner.[5]

2. Taxes

Income from the business is included on the owner’s personal income tax return, U.S. Individual Income Tax Return (IRS Form 1040). The profits and losses of the business are recorded and attached to the Form 1040 on Profit or Loss From Business (Schedule C); Supplemental Income or Loss (Schedule E); or Profit or Loss From Farming (Schedule F).

The owner’s adjusted gross income on Form 1040 is used as net income for ability to pay purposes; however, there are no tax forms that list the business’s current assets and liabilities. When determining a petitioner’s ability to pay the proffered wage, USCIS also considers a sole proprietor’s liquefiable personal assets as well as household expenses and other personal liabilities (such as rent, car payments, and child care expenses).

B. Partnership

A partnership is the relationship between two or more persons or entities who join to carry on a trade or business.[6] Each person or entity contributes to the partnership something of value (for example, money, property, labor, or skill) and expects to share in the profits and losses of the business.[7]

A partnership is created automatically when two or more persons or entities engage in a business enterprise for profit whether or not the persons or entities intend to form a partnership.[8] Partners seeking increased accountability, however, may opt to have their arrangement memorialized in a partnership agreement. The following subsections provide an overview of the most common forms of partnerships. The type of partnership is identified at Schedule B, Line 1 of U.S. Return of Partnership Income (IRS Form 1065).

1. General Partnership

A general partnership is the simplest form of partnership, and as such, general partnerships are simply called partnerships.[9] In a general partnership, all partners or owners may equally share responsibilities and liabilities.

A general partnership has the following characteristics:

  • A general partnership is created through an express or implied agreement;[10]
  • A general partnership has two or more partners;[11] and
  • The owners or partners, which may be other types of entities (such as a corporation or limited liability company), are all liable for all legal actions and debts the company faces.[12]

2. Limited Partnership

A limited partnership[13] is very similar to a general partnership, except that the partnership is partially owned by one or more limited partners and is managed exclusively by its general partner(s).[14]

A limited partnership must have at least one general partner. The general partner, often another type of entity (typically a corporation or limited liability company), has management powers, the right to use partnership property, and is personally liable for the debts of the partnership.[15]

Conversely, limited partners do not participate in the management of the business and are generally liable for the partnership’s debts only to the extent of their contributed investment. Limited partnerships permit a person to invest in a partnership while limiting their liability and involvement in its management. In general, a formal written agreement is required to create a limited partnership.[16]

3. Limited Liability Partnership

In a limited liability partnership (LLP),[17] all partners have limited liability similar to that of limited partners in a limited partnership, but without the limitations on control over the company.[18] Some states limit usage of LLPs to certain professions (for example, lawyers).[19]

4. Limited Liability Limited Partnership

A limited liability limited partnership (LLLP) is a modification of the limited partnership.[20] Similar to a limited partnership, the LLLP consists of one or more general partners and one or more limited partners.[21]

In general, the key features of an LLLP are:

  • The general partners manage the business operations of the LLLP, while the limited partners typically only maintain a passive financial interest;

  • It is designed to offer limited liability to all partners in the partnership; and

  • The partners decide the structure of the organization and the distribution of profits and losses. States usually recommend the partners establish a formal, written partnership agreement.[22]

Not every state allows the formation of or recognizes LLLPs.

5. Taxes

The IRS generally considers partnerships to be pass-through tax entities, which means that the partnership itself does not pay income taxes and all of the profits and losses of the partnership pass through the business to the partners, who pay taxes on their share of the profits (or deduct their share of the losses) on their individual income tax returns.[23] Each partner may share in the profits and losses of the partnership equally, or in proportion to their respective contributions to the partnership or as otherwise set out in a written partnership agreement.

Even though the partnership itself does not pay income taxes, it must file U.S. Return of Partnership Income (IRS Form 1065). This form is an informational return the IRS reviews to determine whether the partners are reporting their income correctly.[24] Net income or loss (notated on tax forms as ordinary business income (loss))[25] is found on IRS Form 1065 or Schedule K and net current assets are calculated from information on Schedule L.

C. Corporation

A corporation is a created by filing articles of incorporation with a state. In the eyes of the law, a corporation is a distinct body separate from its owners and management. Accordingly, a corporation is entitled to all legal rights afforded to individual persons, such as the ability to bring and defend lawsuits or to buy and sell property. The corporation’s most notable feature is that, subject to narrow exceptions, it protects its owners (shareholders) from personal liability for its debts and obligations.[26] A corporation also has directors and officers who run the business.

A corporation has perpetual life. When a shareholder dies or otherwise elects to leave a corporation, the shareholder can transfer their stock to others. Corporate shareholders own the corporation, the board of directors manages the corporation through their direction and control of its officers, and, in almost all cases, the officers oversee the day-to-day operations of the corporation. The shareholders elect the directors, who in turn appoint the corporate officers. Often, particularly in smaller corporations, the same person might serve multiple roles within a corporation: shareholder, director, and officer.[27]

A corporation’s shareholders, directors, and officers must observe particular formalities in a corporation’s operation and administration.[28] For example, corporations must, on at least an annual basis, make decisions regarding a corporation’s management by formal vote and must record those votes in the corporate minutes. Meetings of shareholders and directors must be properly noticed and must meet quorum requirements. Finally, corporations must meet annual reporting requirements in their state of incorporation and in states where they do significant business.[29]

1. Subchapter C Corporations

Corporations that have not elected to be taxed as a subchapter S corporation are by default taxed as a C corporation under Subchapter C of Chapter 1 of the Internal Revenue Code (IRC) where the general tax rules affecting corporations and their shareholders are located.[30]

Taxes[31]

A C corporation files U.S. Corporation Income Tax Return (IRS Form 1120). C corporations (and other entities electing to be taxed as C corporations) are the only type of businesses that must pay income taxes on profits.[32] The subsections below discuss how other corporations file and pay their taxes.

Generally, a C corporation’s taxable profits consist of money kept in the company to cover expenses or expansion (called retained earnings) and profits that are distributed to the owners (shareholders) as dividends. These dividends are taxed twice, as the shareholders also pay taxes on these amounts.[33] Net income (taxable income before net operating loss deduction and special deductions) appears on the IRS Form 1120 or 1120-A, while net current assets are calculated from information on Schedule L of IRS Form 1120 or 1120-A.

To reduce taxable profits, a C corporation can deduct many of its business expenses that the C corporation spends in the legitimate pursuit of profit.[34]

2. Subchapter S Corporations

The subchapter S corporation is a variation of the standard subchapter C corporation. The rules for subchapter S corporations are found in the IRC[35] and provide many of the benefits of partnership taxation while at the same time giving the owners limited liability protection from creditors.

An S corporation has the same corporate structure as a standard C corporation. It is a legal entity, chartered under state law, separate from its shareholders and officers, and there is generally limited liability for corporate shareholders. The difference is that the S corporation files an election on Election by a Small Business Corporation (IRS Form 2553), to be treated differently for federal tax purposes.

As with partnerships, the income, deductions, and tax credits of an S corporation flow through to shareholders annually, regardless of whether distributions (dividends) are made. Therefore, income is taxed solely at the shareholder level and not at the corporate level. To qualify for S corporation status, the corporation must meet certain requirements.[36]

Taxes

An S corporation files U.S. Income Tax Return for an S Corporation (IRS Form 1120-S). The corporate income flows through and is reported on the shareholders’ individual tax returns. The corporation completes and files a Shareholder’s Share of Income, Deductions, Credits, etc. (Schedule K-1) with IRS Form 1120-S for each shareholder. The Schedule K-1 tells shareholders their allocable share of corporate income and deductions.

Shareholders must pay tax on their share of corporate income, regardless of whether it is actually distributed. Net income or loss, notated on tax forms as ordinary business income (loss),[37] appears on the IRS Form 1120-S or its Schedule K, while net current assets are calculated from information on Schedule L.

3. Personal Service Corporation

A personal service corporation is a corporation where the employee-owners are engaged in the performance of personal services. The IRC defines personal services as services performed in the fields of health, law, engineering, architecture, accounting, actuarial science, performing arts, and consulting.[38]

To qualify as a personal service corporation, substantially all the corporation’s activities must involve the performance of personal services, and a percentage of the corporation’s stock must be owned by employees performing the personal services.[39]

Taxes

A personal service corporation pays tax on its profits as a corporate entity. However, a personal service corporation is not allowed to use the graduated tax rates for other C corporations. Instead, it is subject to a flat tax based on the highest corporate tax rate. Because of the high tax rate, personal service corporations generally distribute their profits as wages to the employee-shareholders. In turn, the employee-shareholders pay personal taxes on their wages.[40]

The personal service corporation files its taxes on IRS Form 1120. This form contains a box for the business to indicate that it is a personal service corporation.[41] Net income or loss is notated on IRS Form 1120 or 1120-A as taxable income before net operating loss deduction and special deductions, while net current assets are calculated from information on IRS Form 1120 Schedule L.

D. Limited Liability Company

A limited liability company (LLC) is a hybrid entity, combining some of the most advantageous features of partnerships and corporations.[42] LLCs were created to provide business owners with the liability protection that corporations enjoy without the double taxation. Under the default tax standard, earnings and losses of an LLC pass through to the owners and are included on their personal tax returns.[43]

LLCs are similar to S corporations, except that LLCs are not limited in the number of owners or types of members.[44] LLCs may be either member-managed (managed by each of its members) or manager-managed (managed by specified managers who may or may not be members of the LLC).[45] The LLC’s operating agreement may distinguish between members and managing members. Generally, if such a distinction is made, managing members of the LLC are allowed a full participatory role in the business’s operation. However, depending on the operating agreement, even regular members may have a role in the business’s operation.

To set up an LLC, organizers file articles of organization with the secretary of state in the state where the LLC is formed. Some states also require the filing of an operating agreement, which is similar to a partnership agreement. LLCs do not necessarily have perpetual life and can be set up to dissolve after a set period of time, such as a specific number of years, upon the occurrence of a triggering event, such as the death or withdrawal of a member, or as otherwise provided in the operating agreement.

The IRS does not recognize an LLC as a classification for federal tax purposes and by default treats multi-member LLCs as a partnership and single-member LLCs as a disregarded entity (similar to a sole proprietorship) for tax purposes. As with other entities, however, an LLC may file an election to be taxed differently (such as a corporation).[46]

1. Taxes

For federal income tax purposes, LLCs with two or more members are treated by default as partnerships (a pass-through entity) and must file the IRS Form 1065, discussed above under Section B, Partnership. Each partner receives a Partner’s Share of Income, Deductions, Credits, etc. (Schedule K-1) for their share of income or losses to be reported on that partner’s individual tax return.

If there is only one member in the LLC, it is treated as a disregarded entity (similar to a sole proprietorship) for tax purposes, and the owner reports the LLC’s income on the owner’s personal individual tax return on Schedules C, E, or F to the IRS Form 1040, discussed above under Section A, Sole Proprietorship.

As an option, LLCs may also elect to be taxed like a corporation by filing Entity Classification Election (IRS Form 8832). They can be treated as a regular C corporation (taxation of the entity’s income before any dividends or distributions to the members and then taxation of the dividends or distributions once received as income by the members), or as an S corporation. These corporations file IRS Form 1120 or 1120-S, discussed above under Section C, Corporation.

E. Non-Profit Organization

1. Overview

A non-profit organization (NPO) is an entity that serves some public purpose and therefore enjoys special treatment under the law, including often having tax-exempt status and the protection of directors, officers, and members from personal liability.[47] Typically, NPOs are engaged in charitable, educational, religious, or artistic activities of public or private interest.[48] Unlike a for-profit business entity, an NPO does not distribute profits to its owners.[49] Instead, any profits must ultimately go back into the organization.

In general, an NPO is formed and governed under state statutes the same as other entity types, and often takes the form of nonprofit corporations or LLCs. Whether incorporated or unincorporated, an NPO must keep records, prepare minutes of meetings, and have a separate bank account.

The board of directors typically makes collaborative decisions regarding the operation of the NPO. The board defines the mission and the policies of the NPO, creates budgets and oversees finances, and hires an executive director. If the NPO has an executive director, the director carries out the daily functions of the NPO under the management of the board. The executive director’s job is also to advise and report information to the board about activities and programs, and to monitor finances.

2. Taxes

An incorporated or unincorporated NPO can qualify for tax-exempt status if it meets certain conditions. In most states, if an NPO qualifies for a federal tax exemption it also automatically qualifies for a state tax exemption. The federal government offers many different types of tax exemptions for non-profits under IRC 501(c).[50] The most popular kind of NPO is called a 501(c)(3).[51] Under this code section, the NPO is exempt from paying federal income taxes and contributions made to the non-profit are generally tax-deductible for the donors.

Most NPOs are required to file an annual informational return, called a Return of Organization Exempt From Income Tax (IRS Form 990 or IRS Form 990EZ), if the organization’s gross receipts exceed $50,000 from sources other than the exempt purpose.[52] Some religious organizations are not required to file IRS Form 990 or 990EZ.[53]

IRS Form 990 provides an analysis of an NPO’s revenue and expenses, and net income is stated on the form as revenue less expenses. The abbreviated balance sheet on IRS Form 990 does not identify which assets and liabilities are current and therefore is not useful for calculating net current assets. 

Footnotes


[^ 1] See IRS’s Employer ID Numbers webpage. For an explanation of what types of business structures require an EIN, see IRS’s Do You Need an EIN webpage.  

[^ 2] For an explanation of married couples and sole proprietorship, see IRS’s Frequently Asked Questions for Entities webpage.

[^ 3] See Black’s Law Dictionary (11th ed. 2019).

[^ 4] See Matter of United Investment Group (PDF), 19 I&N Dec. 248 (Comm. 1984).

[^ 5] See Michael Spadaccini, Ultimate Guide to Incorporating in Any State (Irvine, CA: Entrepreneur Press, 2010), p. 3. For a general overview of sole proprietorships, see Jeffrey F. Beatty and Susan S. Samuelson, Business Law and the Legal Environment (Cengage Learning, 2006), p. 755. See the U.S. Small Business Administration’s (SBA’s) Choose a business structure webpage.

[^ 6] See Section 101 of the Uniform Partnership Act (1997). The Uniform Partnership Act is a uniform act from the National Conference of Commissioners on Uniform State Laws for the governance of partnerships. It has been amended several times since its promulgation, most recently in 2011 and 2013. The Uniform Partnership Act has been enacted by most U.S. states. 

[^ 7] See the IRS’s Tax Information For Partnerships webpage.

[^ 8] See Section 202(a) of the Uniform Partnership Act (1997).

[^ 9] See IRS’s Instructions for Form 1065.

[^ 10] A partnership can also be formed by estoppel (where a party is held out to be a partner and can be held liable for debts or damages incurred by the partnership). See definition of “partnership by estoppel,” Black’s Law Dictionary (11th ed. 2019). A written general partnership agreement usually identifies the names of the partners; the amount and type of contribution made by each partner; each partner’s initial percentage of ownership; the business activities conducted by the partnership; whether and how partnership interests can be transferred; and the conditions allowing dissolution of the partnership. See Section 103 of the Uniform Partnership Act (1997).

[^ 11] See the IRS’s Tax Information For Partnerships webpage.

[^ 12] See Section 306 of the Uniform Partnership Act (1997).

[^ 13] See the Uniform Limited Partnership Act (2001). The Uniform Limited Partnership Act is another uniform act from the National Conference of Commissioners on Uniform State Laws for the governance of partnerships.

[^ 14] See Angela Schneeman, Law of Corporations and Other Business Organizations (Cengage Learning, 2009), p. 114.

[^ 15] See Sections 201 and 404 of the Uniform Limited Partnership Act (2001).

[^ 16] The elements identified in these written agreements include the names of partners, the amount and type of contribution made by each partner, whether the partners hold a limited partnership interest, each partner’s initial percentage of ownership, the business activities of the limited partnership, whether and how partnership interests can be transferred, and the conditions allowing the dissolution of the limited partnership. See IRS Publication 541, Partnerships.

[^ 17] See IRS’s Instructions for Form 1065. See Section 1001 of the Uniform Partnership Act.

[^ 18] See the U.S. SBA’s Choose a business structure webpage.

[^ 19] See IRS’s SOI Tax Stats - Partnership Study Explanation of Selected Terms webpage.

[^ 20] For an example of limited partnerships and LLLPs, see page 21 of the Ohio Secretary of State’s publication, Start a Partnership in Ohio (PDF).

[^ 21] State law created and governs LLLPs. See, for example, page 21 of the Ohio Secretary of State’s publication, Start a Partnership in Ohio (PDF), and State of California Franchise Tax Board’s Limited liability limited partnership webpage.

[^ 22] For a discussion of one state’s LLLP provisions, see pages 21 to 23 of the Ohio Secretary of State’s publication, Start a Partnership in Ohio (PDF).

[^ 23] See IRS’s Tax Information For Partnerships webpage.

[^ 24] The partnership must also provide a Partner’s Share of Income, Deductions, Credits, etc. (Schedule K-1) to the IRS and to each partner, which breaks down each partner's share of the business's profits and losses. In turn, each partner reports this profit and loss information on Schedule E of the partner’s individual IRS Form 1040. See IRS’s Instructions for Schedule E.

[^ 25] Negative values are represented in parentheses on tax forms.

[^ 26] See Michael Spadaccini, Ultimate Guide to Incorporating in Any State (Irvine, CA: Entrepreneur Press, 2010), p. 8.

[^ 27] See Michael Spadaccini, Ultimate Guide to Incorporating in Any State (Irvine, CA: Entrepreneur Press, 2010), p. 8.

[^ 28] See William Meade Fletcher, Cyclopedia of the Law of Private Corporations, Vol. 1, section 41.31 (Sept. 2021 Update). See DeWitt Truck Brokers, Inc. v. W. Ray Flemming Fruit Co., 540 F.2d 681 (4th Cir. 1976) (court properly ignored the existence of a corporate entity where there was a failure to follow corporate formalities).

[^ 29] See Wachovia Securities, LLC v. Jahelka, 586 F.Supp.2d 972, 1002 (N.D.I.L. 2008) (disregarding a corporation’s existence when it failed to observe required corporate formalities such as holding regular meetings, taking minutes, and maintaining corporate records).

[^ 30] For instructions on electing a different taxation structure, see IRS’s S Corporations webpage and IRS’s Instructions for Form 1120.

[^ 31] When determining whether or not a corporation has the ability to pay the beneficiary the proffered wage, officers should refer to Volume 6, Immigrants, Part E, Employment-Based Immigration, Chapter 4, Ability to Pay [6 USCIS-PM E.4].

[^ 32] S corporations, partnerships, sole proprietorships, and limited liability companies (LLCs) are not taxed on business profits unless they elect otherwise; instead, the profits pass through the businesses to their owners, who report business income or losses on their personal tax returns.

[^ 33] See IRS Publication 542, Corporations.

[^ 34] In addition to start-up costs, operating expenses, and product and advertising outlays, a C corporation can deduct the salaries and bonuses it pays and all of the costs associated with medical and retirement plans for employees. See IRS’s Instructions for Form 1120.

[^ 35] See 26 U.S.C. 1361.

[^ 36] See IRS’s S Corporations webpage. A subchapter S corporation must be a domestic corporation; have only allowable shareholders (may include persons, certain trusts, and estates, but may not include partnerships, corporations, or non-resident shareholders); have no more than 100 shareholders; have only one class of stock (for example, no preferred stock allowed); and not be an ineligible corporation (such as certain financial institutions, insurance companies, and domestic international sales corporations).

[^ 37] Negative values are represented on tax forms by parentheses.

[^ 38] See 26 U.S.C. 448(d)(2).

[^ 39] See IRS Publication 542, Corporations.

[^ 40] See IRS’s Instructions for Form 1120.

[^ 41] When determining whether or not a corporation has the ability to pay the beneficiary the proffered wage, officers should refer to Volume 6, Immigrants, Part E, Employment-Based Immigration, Chapter 4, Ability to Pay [6 USCIS-PM E.4].

[^ 42] See the U.S. SBA’s Choose a business structure webpage.

[^ 43] While the default tax treatment for an LLC is pass-through taxation, as with all entities, it may elect to be taxed differently.

[^ 44] See IRS’s SOI Tax Stats - Partnership Study Explanation of Selected Terms webpage.

[^ 45] The powers and duties of members and managers are typically outlined in the LLC’s operating agreement. See U.S. SBA’s Basic Information About Operating Agreements webpage.

[^ 46] See IRS’s Limited Liability Company (LLC) webpage. A professional limited liability company (PLLC) is an LLC organized for the purpose of providing professional services, such as a doctor, chiropractor, lawyer, accountant, architect, landscape architect, or engineer. Some states permit LLCs to engage in the practice of a licensed profession through PLLCs. Exact requirements of PLLCs vary from state to state. Typically, a PLLC's members must all be professionals practicing the same profession. In addition, the limitation of personal liability of members does not extend to professional malpractice claims.

[^ 47] See Marilyn E. Phelan, Nonprofit Organizations: Law and Taxation, sections 1:1, 4:1, and 7:1 (Oct. 2022 Update).

[^ 48] See IRS’s Exempt Organization Types webpage.

[^ 49] See Marilyn E. Phelan, Nonprofit Organizations: Law and Taxation, section 1:2 (Oct. 2022 Update).

[^ 50] See 26 U.S.C. 501.

[^ 51] To qualify, the non-profit organization must be organized and operated exclusively for the exempt purposes set forth in IRC 501(c)(3)—charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals—and no part of their net earnings “may inure to any private shareholder or individual.” See 26 U.S.C. 501(c)(3). See IRS’s Exemption Requirements – 501(c)(3) Organizations webpage.

[^ 52] See IRS’s Instructions for Form 990 Return of Organization Exempt From Income Tax.

[^ 53] See IRS’s Instructions for Form 990 Return of Organization Exempt From Income Tax and IRS’s Tax Guide for Churches and Religious Organizations (PDF).

Appendix: Regional Center Program Prior to March 15, 2022

Relocation of Guidance to Appendix

This chapter was moved to an appendix while USCIS reviews the March 15, 2022 EB-5 Reform and Integrity Act of 2022 (PDF).

Historical Guidance

ALERT: On June 22, 2021, the U.S. District Court for the Northern District of California, in Behring Regional Center LLC v. Wolf, 20-cv-09263-JSC, vacated the EB-5 Immigrant Investor Program Modernization Final Rule (PDF).

On June 22, 2021, the U.S. District Court for the Northern District of California, in Behring Regional Center LLC v. Wolf, 20-cv-09263-JSC, vacated the EB-5 Immigrant Investor Program Modernization Final Rule (PDF). While USCIS considers this decision, we will apply the EB-5 regulations that were in effect before the rule was finalized on Nov. 21, 2019, including: 

  • No priority date retention based on an approved Form I-526;
  • The required standard minimum investment amount of $1 million and the minimum investment amount for investment in a Targeted Employment Area (TEA) of $500,000;
  • Permitting state designations of high unemployment TEAs; and
  • Prior USCIS procedures for the removal of conditions on permanent residence.

In other words, we are applying the regulations in effect before Nov. 21, 2019 in this chapter.

ALERT: Statutory authorization related to the EB-5 Immigrant Investor Regional Center Program expired at midnight on June 30, 2021.

Statutory authorization related to the EB-5 Immigrant Investor Regional Center Program expired at midnight on June 30, 2021. This lapse in authorization does not affect EB-5 petitions filed by investors who are not seeking a visa under the Regional Center Program. Due to the lapse in authorization related to the Regional Center Program, USCIS will reject the following forms received on or after July 1, 2021:

  • Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program, except when the application type indicates that it is an amendment to the regional center’s name, organizational structure, ownership, or administration; and
  • Form I-526, Immigrant Petition by Alien Investor, when it indicates that the petitioner’s investment is associated with an approved regional center.

In general, we will not act on any pending petition or application of these form types that is dependent on the lapsed statutory authority until further notice.

The goal of the Regional Center Program is to stimulate economic growth in a specified geographic area. The regional center model can offer an immigrant investor already defined investment opportunities, thereby reducing the immigrant investor’s responsibility to identify acceptable investment vehicles. If the new commercial enterprise is located within the geographic area, and falls within the economic scope of the defined regional center, reasonable methodologies can be used to demonstrate indirect job creation.[1] A regional center can be associated with one or more new commercial enterprises. 

A regional center seeking to participate in the Regional Center Program must submit a proposal using the Application For Regional Center Under the Immigrant Investor Program (Form I-924). 

USCIS may designate a regional center based on a general proposal for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment. The statute further provides that a regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. 

In addition, the establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from immigrant investors, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have on the area.[2]

The regulations state that the proposal must:

  • Clearly describe how the regional center focuses on a geographical region of the United States and how it will promote economic growth through increased export sales, improved regional productivity, job creation, and increased domestic capital investment;

  • Provide in verifiable detail how jobs will be created directly or indirectly;

  • Provide a detailed statement regarding the amounts and sources of capital which have been already committed to the regional center;

  • Provide a description of the promotional efforts taken and planned by the sponsors of the regional center;

  • Include a detailed prediction[3] how the regional center will have a positive impact on the regional or national economy based on factors such as increased household earnings, greater demand for business services, utilities, maintenance and repair, and construction both within and without the regional center; and

  • Be supported by economically or statistically valid forecasting tools, including, but not limited to, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, or multiplier tables.[4]

The level of verifiable detail required for a Form I-924 to be approved and provided deference may vary depending on the nature of the application filing.[5]

A. Regional Center Application Proposals

The regional center proposal must include a management and operational plan to administer, oversee, and manage the proposed regional center, including but not limited to how the regional center:

  • Will be promoted to attract immigrant investors, including a description of the budget for promotional activities;

  • Will identify, assess, and evaluate proposed immigrant investor projects and enterprises;

  • Characterizes the structure of the investment capital it will sponsor; for example, whether the investment capital to be sought for job-creating companies will consist solely of immigrant investor capital or a combination of immigrant investor capital and domestic capital, and how the distribution of the investment capital will be structured (for example, loans to developers or venture capital); and

  • Will oversee all investment activities affiliated with, through, or under the sponsorship of the proposed regional center.

Geographic Area

An officer reviews the proposed geographic boundaries of a new regional center to determine if they are acceptable. USCIS considers geographic boundaries acceptable if the regional center applicant can establish by a preponderance of the evidence that the proposed economic activity will promote economic growth in the proposed area.[6] The determination is fact-specific, and the law does not require any particular form of evidence, such as a county-by-county analysis. 

In addition, a regional center’s geographic area must be limited, contiguous, and consistent with the purpose of concentrating pooled investment in defined economic zones.[7] To demonstrate that the proposed geographic area is limited, the regional center applicant should submit evidence demonstrating the linkages between proposed economic activities within the proposed area based on different variables. Examples of variables to demonstrate linkages between economic activities can include but are not limited to:

  • Regional connectivity;

  • The labor pool and supply chain; and

  • Interdependence between projects.

Moreover, in assessing the likelihood that the proposed economic activity will promote economic growth in the proposed geographic area, an officer reviews the impact of the activity relative to relevant economic conditions. The size of the proposed area should be limited and consistent with the scope and scale of the proposed economic activity, as the regional center applicant is required to focus on a geographical region of the United States.[8] The regional center applicant must present an economic analysis of its proposed economic activity in the proposed geographic area that is supported by economically or statistically valid forecasting tools.[9] The Form I-924 instructions provide further information regarding the requirements of the economic analysis.

B. Types of Regional Center Projects

An actual project refers to a specific project proposal that is supported by a Matter of Ho (PDF) compliant business plan.[10]

A hypothetical project refers to a project proposal that is not supported by a Matter of Ho (PDF) compliant business plan. 

The term exemplar refers to a sample Immigrant Petition by Alien Investor (Form I-526), filed with Form I-924 for an actual project. This type of regional center proposal contains copies of the commercial enterprise’s organizational and transactional documents, which USCIS reviews to determine if they are in compliance with established eligibility requirements.

1. Hypothetical Projects

If the Form I-924 projects are hypothetical projects, general proposals and general predictions may be sufficient to determine that the proposed regional center will more likely than not promote economic growth, improved regional productivity, job creation, and increased domestic capital investment. A regional center applicant seeking review of a hypothetical project should clarify in the Form I-924 submission that the project is hypothetical. General proposals and predictions may include a description of the project parameters, such as:

  • Proposed project activities, industries, locations, and timelines;

  • A general market analysis of the proposed job creating activities and explanation regarding how the proposed project activities are likely to promote economic growth and create jobs; and

  • A description, along with supporting evidence, of the regional center principals’ relevant experience and expertise.

While hypothetical project submissions are sufficient for regional center designation, previous determinations based on hypothetical projects will not receive deference. Actual projects will receive a de novo officer review during subsequent filings (for example, through the adjudication of an amended Form I-924 application, including the actual project details or the first Form I-526 immigrant investor petition).

Organizational and transactional supporting documents are not required for a hypothetical project. If a regional center applicant desires a compliance review of organizational and transactional documents, the application must include an actual project with a Matter of Ho (PDF) compliant business plan and an exemplar immigrant investor petition. 

2. Actual Projects

Applications for regional center designation based on actual projects may require more details than a hypothetical project to demonstrate that the proposal contains verifiable details and is supported by economically or statistically sound forecasting tools. A regional center applicant seeking review of an actual project should clarify in the Form I-924 submission that the project is actual. 

Actual projects require a Matter of Ho (PDF) compliant comprehensive business plan that provides verifiable detail on how jobs will be created. Absent fraud, willful misrepresentation, or a legal deficiency,[11] USCIS defers to prior determinations based on actual projects when evaluating subsequent filings under the project involving the same material facts and issues. 

Organizational and transactional documents for the new commercial enterprise are not required. If a regional center applicant desires review of organizational and transactional documents for program compliance, the regional center application must be accompanied by an exemplar Form I-526 immigrant investor petition. 

If regional center applicants opt not to file a Form I-924 amendment, the investor should identify his or her Form I-526 immigrant investor petition as an actual project being presented for the first time. Additionally, the immigrant petition should contain an affirmative statement signed by a regional center principal confirming that the regional center is aware of the specific project being presented for the first time as part of the immigrant investor petition.

In cases where the regional center application is filed based on actual projects that do not contain sufficient verifiable detail, USCIS may approve the projects as hypothetical projects if they contain the requisite general proposals and predictions. The projects approved as hypotheticals, however, do not receive deference in subsequent filings. 

In cases where some projects are approvable as actual projects, and others are not approvable or only approvable as hypothetical projects, the approval notice should identify which projects have been approved as actual projects and will be accorded deference. The approval notice should also identify projects that have been approved as hypothetical projects but will not be accorded deference. 

3. Exemplar Filings

Regional center applications, based on actual projects, including a Form I-526 immigrant investor exemplar petition, require more details than a hypothetical or actual project submitted without an exemplar. A regional center applicant seeking review of an exemplar should state that the project is an actual project with a Form I-526 exemplar.

Exemplar filings require a Matter of Ho (PDF) compliant comprehensive business plan that provides verifiable detail on how jobs will be created, as well as organizational and transactional documents for the new commercial enterprise. 

Absent fraud, willful misrepresentation, or a legal deficiency, officer determinations based on exemplar filings are accorded deference in subsequent filings under the project with the same material facts and issues. 

While an amended Form I-924 is not required to perfect a hypothetical project once the actual project details are available, some applicants may choose to file an amended Form I-924 application with a Form I-526 exemplar to obtain a favorable determination. These exemplar filings are accorded deference in subsequent related filings, absent material change, fraud, willful misrepresentation, or a legally deficient determination. 

C. Regional Center Annual Reporting

Designated regional centers must file a Supplement to Form I-924 (Form I-924A) annually that demonstrates continued eligibility for designation as a regional center in the EB-5 Program.[12] The regional center must file the form within 90 days of the end of the fiscal year (between October 1 and December 29). The Form I-924A instructions specifically list required information that must be submitted.[13]

If the regional center fails to file the required annual report, USCIS issues a Notice of Intent to Terminate (NOIT) to the regional center for failing to provide the required information. This may ultimately result in the termination of the regional center’s designation if the regional center fails to respond or does not file a response which adequately demonstrates continued eligibility.

D. Regional Center Amendments

Because businesses’ strategies constantly evolve, with new opportunities identified and existing plans improved, a regional center may amend a previously approved designation. The Form I-924 instructions provide information regarding the submission of regional center amendment requests.[14]

To improve processing efficiencies and predictability in subsequent filings, many regional centers may seek to amend the Form I-924 approval to reflect changes in economic analysis and job creation estimates. Such amendments, however, are not required in order for individual investors to proceed with filing the immigrant petitions or petitions to remove conditions on residence based on the additional jobs created, or to be created, in additional industries. 

Formal amendments to an approved regional center’s designation are not required when a regional center changes its industries of focus, business plans, or economic methodologies; however, a regional center may find it advantageous to seek USCIS approval of such changes before they are adjudicated in individual immigrant investor petitions.

Requests to Change Geographic Area

When a regional center requests to expand its geographic area, the proposed geographic area must be limited, contiguous, and consistent with the purpose of concentrating pooled investment in defined economic zones.[15]​

Any requests for geographic area expansion made on or after February 22, 2017 are adjudicated under the current guidance in the Form I-924 instructions which requires that a Form I-924 amendment must be filed, and approved, to expand the regional center’s geographic area. The Form I-924 amendment must be approved before an I-526 petitioner may demonstrate eligibility at the time of filing his or her petition based on an investment in the expanded area.

If the regional center’s geographic area expansion request was submitted either through a Form I-924 amendment or Form I-526 petition filed prior to February 22, 2017, and the request is ultimately approved, USCIS will continue to adjudicate additional Form I-526 petitions associated with investments in that area under prior policy guidance issued on May 30, 2013.[16] That policy did not require a formal amendment to expand a regional center’s geographic area, and permitted concurrent filing of the Form I-526 prior to approval of the geographic area amendment. 

E. Termination of a Regional Center Designation

USCIS issues a NOIT if:

  • USCIS determines that a regional center no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment; or

  • The regional center fails to submit required information to USCIS.[17]

The NOIT will provide the grounds for termination and provide at least 30 days from receipt of the NOIT for the regional center to respond to the allegations in the NOIT. The regional center may offer evidence to contest the allegations in the NOIT. If the regional center overcomes the allegations in the NOIT, USCIS issues a Notice of Reaffirmation that affirms the regional center’s designation. 

If the regional center fails to overcome the allegations in the NOIT, USCIS terminates the regional center’s participation in the Regional Center Program. In this case, USCIS notifies the regional center of the termination, the reasons for termination, and the right to file a motion, appeal, or both. The regional center may appeal the decision to USCIS’ Administrative Appeals Office within 30 days after service of notice (33 days, if the notice was mailed).[18]

Footnotes


[^ 1] For a definition of indirect jobs, see Chapter 2, Eligibility Requirements, Section D, Creation of Jobs, Subsection 4, Measuring Job Creation [6 USCIS-PM G.2(D)(4)].

[^ 2] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Pub. L. 102-395 (PDF, 83.2 KB), 106 Stat. 1828, 1874 (October 6, 1992), as amended.

[^ 3] An applicant can submit a general prediction which addresses the prospective impact of the capital investment projects sponsored by the regional center, regionally or nationally. See Form I-924 instructions.

[^ 4] See 8 CFR 204.6(m)(3).

[^ 5] For more information about the types of regional center projects, see Section B, Types of Regional Center Projects [6 USCIS-PM G.3(B)].

[^ 6] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395 (PDF, 83.2 KB), 106 Stat. 1828, 1874 (October 6, 1992), as amended. See 8 CFR 204.6(m)(3)(i) (requiring a clear description of how the regional center focuses on a geographical region of the United States and how it will promote economic growth).

[^ 7] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395 (PDF, 83.2 KB), 106 Stat. 1828, 1874 (October 6, 1992), as amended.

[^ 8] See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395 (PDF, 83.2 KB), 106 Stat. 1828, 1874 (October 6, 1992), as amended. See 8 CFR 204.6(m)(3)(i).

[^ 9] See 8 CFR 204.6(m)(3).

[^ 10] See Chapter 2, Eligibility Requirements, Section B, Comprehensive Business Plan [6 USCIS-PM G.2(B)].

[^ 11] Legal deficiency includes objective mistakes of law or fact made as part of the USCIS adjudication.

[^ 12] See 8 CFR 204.6(m)(6). 

[^ 13] See Form I-924A instructions.

[^ 14] See Form I-924 instructions. 

[^ 15] For a discussion of an officer’s review of a regional center’s proposed geographic area, see Section A, Regional Center Application Proposals [6 USCIS-PM G.3(A)].

[^ 16] See EB-5 Adjudication Policy Memo (PDF, 829.48 KB), PM-602-0083, issued May 30, 2013.

[^ 17] See 8 CFR 204.6(m)(6).

[^ 18] See 8 CFR 103.3. See 8 CFR 204.6(m)(6).

Updates

POLICY ALERT - EB-5 Reform and Integrity Act of 2022

October 06, 2022

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to incorporate changes resulting from the EB-5 Reform and Integrity Act of 2022.

Read More
Affected Sections

6 USCIS-PM G.1 - Chapter 1 - Purpose and Background

6 USCIS-PM G.2 - Chapter 2 - Eligibility Requirements

7 USCIS-PM A.3 - Chapter 3 - Filing Instructions

7 USCIS-PM A.6 - Chapter 6 - Adjudicative Review

7 USCIS-PM A.7 - Chapter 7 - Child Status Protection Act

7 USCIS-PM B.2 - Chapter 2 - Eligibility Requirements

7 USCIS-PM B.8 - Chapter 8 - Inapplicability of Bars to Adjustment

Technical Update - Clarifications Addressing Passage of EB-5 Reform and Integrity Act of 2022

July 18, 2022

This technical update to Volume 6 clarifies the Policy Manual alert boxes published on April 27, 2022 relating to the recent EB-5 Reform and Integrity Act of 2022, which authorizes an EB-5 Immigrant Investor Regional Center Program and includes various implementation effective dates for the program. On June 24, 2022, the U.S. District Court for the Northern District of California in Behring Regional Center LLC v. Mayorkas, et al, 3:22-cv-02487, issued a preliminary injunction enjoining USCIS “from treating as deauthorized the previously designated regional centers.” The April 27, 2022 alert remains posted for historical purposes.

Affected Sections

6 USCIS-PM G.1 - Chapter 1 - Purpose and Background

6 USCIS-PM G.2 - Chapter 2 - Eligibility Requirements

6 USCIS-PM G.4 - Chapter 4 - Immigrant Petition by Alien Investor (Form I-526)

6 USCIS-PM G.5 - Chapter 5 - Removal of Conditions

Technical Update - Passage of EB-5 Reform and Integrity Act of 2022

April 27, 2022

This technical update to Volume 6 alerts readers to the passage of the EB-5 Reform and Integrity Act of 2022, which authorizes an EB-5 Immigrant Investor Regional Center Program and includes various implementation effective dates for the program. The alert boxes refer readers to uscis.gov for the latest information on the implementation of that law. In addition, this update reserves and moves all of the content in Chapter 3 (Regional Center Designation, Reporting, Amendments, and Termination) to an appendix (Regional Center Program Prior to March 15, 2022) as Congress repealed that program.

Affected Sections

6 USCIS-PM G.1 - Chapter 1 - Purpose and Background

6 USCIS-PM G.2 - Chapter 2 - Eligibility Requirements

6 USCIS-PM G.3 - Chapter 3 - Regional Center Designation, Reporting, Amendments, and Termination [Reserved]

6 USCIS-PM G.4 - Chapter 4 - Immigrant Petition by Alien Investor (Form I-526)

6 USCIS-PM G.5 - Chapter 5 - Removal of Conditions

POLICY ALERT - Immigrant Investors and Investment of Loan Proceeds

July 22, 2021

U.S. Citizenship and Immigration Services (USCIS) is revising policy guidance in the USCIS Policy Manual to comply with a recent court order.

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Affected Sections

6 USCIS-PM G.2 - Chapter 2 - Eligibility Requirements

Technical Update - EB-5 Modernization Rule Vacatur

July 15, 2021

This technical update explains that on June 22, 2021, the U.S. District Court for the Northern District of California, in Behring Regional Center LLC v. Wolf, 20-cv-09263-JSC, vacated the EB-5 Immigrant Investor Program Modernization Final Rule (PDF). While USCIS considers this decision, USCIS will apply the EB-5 regulations and policies that were in effect before the rule was finalized on November 21, 2019.

Affected Sections

6 USCIS-PM G.1 - Chapter 1 - Purpose and Background

6 USCIS-PM G.2 - Chapter 2 - Eligibility Requirements

6 USCIS-PM G.3 - Chapter 3 - Regional Center Designation, Reporting, Amendments, and Termination [Reserved]

6 USCIS-PM G.4 - Chapter 4 - Immigrant Petition by Alien Investor (Form I-526)

6 USCIS-PM G.5 - Chapter 5 - Removal of Conditions

7 USCIS-PM A.6 - Chapter 6 - Adjudicative Review

Technical Update - Replacing the Term “Alien”

May 11, 2021

This technical update replaces all instances of the term “alien” with “noncitizen” or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

10 USCIS-PM - Volume 10 - Employment Authorization

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

POLICY ALERT - Clarifying Guidance for Deployment of Capital in Employment-Based Fifth Preference (EB-5) Category

July 24, 2020

U.S. Citizenship and Immigration Services (USCIS) is issuing clarifying policy guidance in the USCIS Policy Manual regarding deployment of investment capital, including further deployment after the job creation requirement is satisfied.

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Affected Sections

6 USCIS-PM G.2 - Chapter 2 - Eligibility Requirements

6 USCIS-PM G.4 - Chapter 4 - Immigrant Petition by Alien Investor (Form I-526)

Technical Update - Moving the Adjudicator’s Field Manual Content into the USCIS Policy Manual

May 21, 2020

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF, 350.49 KB) between the AFM and the Policy Manual.

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole

4 USCIS-PM - Volume 4 - Refugees and Asylees

5 USCIS-PM - Volume 5 - Adoptions

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

POLICY ALERT - EB-5 Immigrant Investor Program Modernization Final Rule

November 06, 2019

U.S. Citizenship and Immigration Services (USCIS) is revising its policy guidance in the USCIS Policy Manual to align with the EB-5 Immigrant Investor Program Modernization Final Rule, published on July 24, 2019, and effective November 21, 2019. Note: On June 22, 2021, the U.S. District Court for the Northern District of California, in Behring Regional Center LLC v. Wolf, 20-cv-09263-JSC, vacated the EB-5 Immigrant Investor Program Modernization Final Rule (PDF). While USCIS considers this decision, USCIS will apply the EB-5 regulations and policies that were in effect before the rule was finalized on November 21, 2019.

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Affected Sections

6 USCIS-PM G.1 - Chapter 1 - Purpose and Background

6 USCIS-PM G.2 - Chapter 2 - Eligibility Requirements

6 USCIS-PM G.4 - Chapter 4 - Immigrant Petition by Alien Investor (Form I-526)

6 USCIS-PM G.5 - Chapter 5 - Removal of Conditions

7 USCIS-PM A.6 - Chapter 6 - Adjudicative Review

Technical Update - Replacing the Term “Foreign National”

October 08, 2019

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

Affected Sections

1 USCIS-PM - Volume 1 - General Policies and Procedures

2 USCIS-PM - Volume 2 - Nonimmigrants

6 USCIS-PM - Volume 6 - Immigrants

7 USCIS-PM - Volume 7 - Adjustment of Status

8 USCIS-PM - Volume 8 - Admissibility

9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief

10 USCIS-PM - Volume 10 - Employment Authorization

11 USCIS-PM - Volume 11 - Travel and Identity Documents

12 USCIS-PM - Volume 12 - Citizenship and Naturalization

POLICY ALERT - Immigrant Investors and Debt Arrangements

October 30, 2018

U.S. Citizenship and Immigration Services (USCIS) is revising policy guidance in the USCIS Policy Manual to clarify its policy on debt arrangements.

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Affected Sections

6 USCIS-PM G.2 - Chapter 2 - Eligibility Requirements

POLICY ALERT - Geographic Area of a Regional Center

August 24, 2018

U.S. Citizenship and Immigration Services (USCIS) is updating guidance in the USCIS Policy Manual regarding a regional center’s geographic area, requests to expand the geographic area, and how such requests impact the filing of Form I-526, Immigrant Petition by Alien Entrepreneur.

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Affected Sections

6 USCIS-PM G - Part G - Investors

Technical Update - Rescinding Tenant-Occupancy Methodology

July 26, 2018

This technical update clarifies that the rescission of the policy regarding the tenant-occupancy methodology does not affect petitions pending on May 15, 2018 (the date USCIS announced the rescission).

Affected Sections

6 USCIS-PM G.2 - Chapter 2 - Eligibility Requirements

POLICY ALERT - Rescinding Tenant-Occupancy Methodology

May 15, 2018

U.S. Citizenship and Immigration Services (USCIS) is revising policy guidance in the USCIS Policy Manual to reflect that, as of May 15, 2018, USCIS no longer considers tenant occupancy to be a reasonable methodology to support economically or statistically valid forecasting tools.

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Affected Sections

6 USCIS-PM G.2 - Chapter 2 - Eligibility Requirements

POLICY ALERT - Job Creation and Capital At Risk Requirements for Investors

June 14, 2017

U.S. Citizenship and Immigration Services (USCIS) is updating the USCIS Policy Manual to provide further guidance regarding the job creation and capital at risk requirements for Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status.

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Affected Sections

6 USCIS-PM G - Part G - Investors

POLICY ALERT - Employment-Based Fifth Preference Immigrants: Investors

November 30, 2016

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance regarding the eligibility requirements for regional centers and immigrant investors.

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Affected Sections

6 USCIS-PM G - Part G - Investors

Archived Content

This content has been superseded by the current version available in the Guidance tab. The historical versions linked below reflect the pertinent policy in effect on that date and dates reflect when updates occurred. The historical versions are provided for research and reference purposes only. USCIS employees should not rely on the historical versions for current laws, precedent decisions, policies, directives, guidance, and procedures.

The History tab was added to the USCIS Policy Manual on June 11, 2021, and provides historical versions on and after that date. For historical versions before June 11, 2021, navigate to the USCIS Policy Manual within the USCIS website at: https://archive.org

Version History:

  • View version archived on July 18, 2022
  • View version archived on April 27, 2022
  • View version archived on July 22, 2021
  • View version archived on July 15, 2021
  • View version archived on May 11, 2021

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