Who Can Be an EB-5 Investor? Eligibility Criteria and Background

The EB-5 Immigrant Investor Program offers a pathway to a U.S. Green Card for foreign nationals who make a significant capital investment in a new commercial enterprise in the United States that creates or preserves at least ten full-time jobs for qualifying U.S. workers. Understanding the eligibility criteria is the first crucial step for any prospective investor.

Core Requirements for EB-5 Investors

While the investment amount is a primary factor, the investor must also meet specific personal and financial background requirements mandated by U.S. Citizenship and Immigration Services (USCIS).

1. Qualifying Investment Threshold

The required investment amount depends on the location of the new commercial enterprise (NCE):

• Targeted Employment Area (TEA) or Infrastructure Project: The minimum investment required is currently $800,000.
• Non-TEA Location: The minimum investment required is currently $1,050,000.

It is imperative that these funds are fully committed to the NCE upon filing the I-526E petition.

2. Source of Funds Requirement

Perhaps the most scrutinized aspect of the application is proving that the investment capital was obtained legally. The investor must demonstrate a clear chain of title for the funds used.

Acceptable sources of funds generally include:

1. Income derived from lawful business activities.
2. Gifts or inheritance, provided appropriate tax documentation is available.
3. Sale of assets (e.g., real estate, stocks), again requiring proof of original purchase and sale.
4. Loans secured by the investor's personal assets (not assets of the new enterprise).

Note on Legality: Funds cannot be derived from illegal activities. USCIS reviews tax returns, bank statements, and transactional records meticulously to establish the legitimacy of the capital.

3. Job Creation Requirement

The investment must lead to the creation or preservation of at least ten qualifying full-time jobs for U.S. workers within two years of the investment being made (or projected to be made, depending on the filing stage).

Defining Full-Time Employment

USCIS defines full-time employment as a job requiring a minimum of 35 working hours per week. Contract, temporary, or part-time positions do not qualify unless they aggregate to the equivalent of ten full-time positions.

Investor Background and Immigration Status

Unlike some other visa categories, the EB-5 program has relatively few restrictions regarding the investor's existing immigration status or professional background, though certain considerations apply.

Investor Status

• No Citizenship Requirement: Investors can be citizens of any country, provided that country does not have an existing trade embargo or specific U.S. sanctions against it that would prohibit investment.
• No Age Requirement: There is no minimum age requirement to be an investor, although the primary applicant must be 21 or older to manage the investment actively in practice.
• No Minimum Education or Management Experience: Unlike the previous requirement for non-TEA investments, direct management experience or a specific educational level is not required for the investor, provided the investment is made through a Regional Center.

Active vs. Passive Investment Role

The level of involvement required depends on the investment vehicle:

• Direct Investment: The investor must demonstrate they are engaged in the day-to-day management or policy setting of the NCE.
• Regional Center Investment: This is the most common route. The investor is considered a passive investor and does not need to be involved in the management of the NCE; the Regional Center manages the compliance aspects.

Conclusion: Preparing for Eligibility

To qualify as an EB-5 investor, one must successfully navigate the capital threshold, prove the lawful source of those funds, and ensure the investment structure supports the mandated job creation. Thorough preparation regarding financial documentation is essential, as failure to substantiate the source of capital is the leading cause of denial.