About the EB-5 Visa Classification

Alert: As of Dec. 30, 2021, Congress has not enacted new legislation authorizing the EB-5 Immigrant Investor Regional Center Program. 

As of Dec. 30, 2021, Congress has not enacted new legislation authorizing the EB-5 Immigrant Investor Regional Center Program. As a result, USCIS is reevaluating the decision to hold, or not act on, any pending petition or application of these form types that is dependent on the expired statutory authority and was filed before the end of the statutory authorization. We will provide additional guidance as soon as practical.

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, on this website and in the USCIS Policy Manual, Volume 6, Part G, Investors. In addition, we again will accept the April 15, 2019, version of Form I-526, Immigrant Petition by Alien Entrepreneur, because the Nov. 21, 2019, version of the form reflects updates from the now-vacated rule.

Alert: Statutory authorization for the EB-5 Immigrant Investor Regional Center Program ended at midnight on June 30, 2021. 

Statutory authorization for the EB-5 Immigrant Investor Regional Center Program ended at midnight on June 30, 2021. This sunset 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 sunset in authorization for the Regional Center Program, we will reject the following forms received on or after July 1, 2021:

Until further notice, we will hold (that is, not act on) any pending petition or application of these form types that is dependent on the lapsed statutory authority and was filed before the end of the statutory authorization. At the end of calendar year 2021, unless there is new legislation for regional centers, we will reevaluate whether to keep this hold in place. If we wrote to you about your petition or application on or before June 30, 2021, you should review our written correspondence and respond by the due date (as applicable). Although we cannot review your response right now, we will keep your response for review if circumstances change.

We will still accept and review Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, including those filed on or after July 1, 2021.

We will still accept and review Form I-924A, Annual Certification of Regional Center, including those filed on or after July 1, 2021. Regional centers should continue to submit Form I-924A, for fiscal year 2021.  

In addition, we will keep on hold (that is, not act on) any Form I-485 that is based on a Form I-526 for an approved regional center; the Form I-526 must have been filed before the end of the statutory authorization. At the end of calendar year 2021, unless there is new legislation for regional centers, we will reevaluate the hold. We will accept and adjudicate Forms I-765 and I-131 relating to these pending Forms I-485.

We will provide further guidance if circumstances change or further guidance becomes necessary.

This page in Simplified Chinese. (PDF, 228.14 KB)

USCIS administers the EB-5 Immigrant Investor Program, created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a program first enacted as a pilot in 1992 and regularly reauthorized since then, investors may also qualify for EB-5 classification by investing through regional centers designated by USCIS based on proposals for promoting economic growth. On Dec. 27, 2020, President Trump signed a law extending the Regional Center Program through June 30, 2021.

USCIS policy on EB-5 adjudications is in Volume 6, Part G of the USCIS Policy Manual.

All EB-5 investors must invest in a new commercial enterprise that was established:

  • After Nov. 29, 1990; or
  • On or before Nov. 29, 1990, that was:
    • Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results; or
    • Expanded through the investment, resulting in at least a 40% increase in the net worth or number of employees.

Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business, including:

  • A sole proprietorship;
  • Partnership (whether limited or general);
  • Holding company;
  • Joint venture;
  • Corporation;
  • Business trust; or
  • Other entity, which may be publicly or privately owned.

This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, if each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.

This definition does not include noncommercial activity, such as owning and operating a personal residence.

Job Creation Requirements

An EB-5 investor must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying employees.

  • For a new commercial enterprise not located within a regional center, the new commercial enterprise must directly create the full-time positions to be counted. This means that the new commercial enterprise (or its wholly owned​ subsidiaries) must itself be the employer of the qualifying employees.
  • For a new commercial enterprise located within a regional center, the new commercial enterprise can directly or indirectly create the full-time positions.
    • Direct jobs establish an employer-employee relationship between the new commercial enterprise and the persons it employs.
    • Indirect jobs are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise.
  • In the case of a troubled business, the EB-5 investor may rely on job maintenance.
    • The investor must show that the number of existing employees is, or will be, no less than the pre-investment level for a period of at least two years.

A troubled business is one that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period before the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20% of the troubled business’ net worth before the loss. When determining whether the troubled business has been in existence for two years, USCIS will consider successors in interest to the troubled business when evaluating whether they have been in existence for the same period of time as the business they succeeded.

A qualifying employee is a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the United States, including a conditional resident, temporary resident, asylee, refugee, or a person residing in the United States under suspension of deportation. This definition does not include immigrant investors; their spouses, sons, or daughters; or any noncitizen in any nonimmigrant status (such as an H-1B nonimmigrant) or who is not authorized to work in the United States.

Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. 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.

A job-sharing arrangement where two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions even if, when combined, the positions meet the hourly requirement per week.

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

Capital Investment Requirements

Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by immigrant investors, if they are personally and primarily liable and the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital will be valued at fair-market value in U.S. dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) will not be considered capital for the purposes of section 203(b)(5) of the Act.

Note: Immigrant investors must establish that they are the legal owner of the capital invested. Capital can include their promise to pay (a promissory note) under certain circumstances.

The minimum investment amounts by filing date and investment location are:

Petition Filing Date Minimum Investment Amount – 8 CFR 204.6(f)(1). Targeted Employment Area Investment Amount – 8 CFR 204.6(f)(2) High-Employment Area Investment Amount – 8 CFR 204.6(f)(3)

Before 11/21/2019

$1,000,000

$500,000

$1,000,000

On or After 11/21/2019

$1,800,000

$900,000

$1,800,000

Future adjustments will be tied to inflation (per the Consumer Price Index for All Urban Consumers, or CPI-U) and occur every five years.

A targeted employment area can be, at the time of investment, either:

  • A rural area; or
  • An area that has experienced high unemployment (defined as at least 150% of the national average unemployment rate).

A rural area is any area other than an area within a 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 according to the most recent decennial census of the United States.

A high-unemployment area may be any of the following areas, if that area is where the new commercial enterprise is principally doing business and the area has experienced an average unemployment rate of at least 150% of the national average unemployment rate:

  • An MSA;
  • A specific county in an MSA;
  • A county in which a city or town with a population of 20,000 or more is located; or
  • A city or town with a population of 20,000 or more outside of an MSA.

A high-unemployment area may also consist of the census tract or contiguous census tracts in which the new commercial enterprise is principally doing business, which may include any or all directly adjacent census tracts, if the weighted average unemployment for the specified area based on the labor force employment measure for each tract is 150% of the national unemployment average.

Last Reviewed/Updated: