The Fifth Preference (EB-5) employment creation visa category provides conditional residency to foreign nationals who invest $1,000,000 (or $500,000 in targeted employment and rural areas) in a new commercial enterprise that creates full-time employment for 10 United States citizens or authorized immigrant workers and engage in the day-to-day management of the business. The requirements are as follows:

  • Person must invest in a “new commercial enterprise,” which means a company formed after November 29, 1990. The term “commercial enterprise” includes a broad spectrum of business relationships including limited partnerships, holding companies and their wholly-owned subsidiaries, provided they are all for profit business operations.
  • If investing in a company formed before November 29, 1990, the company will only be considered “new” for purposes of the law if:
    • it has been restructured or reorganized so that a new commercial enterprise results; or
    • it has been expanded so that a substantial change in the net worth or number of employees has occurred.  Substantial change means a 40 percent increase in the net worth or the number of employees. The investor still needs to show the minimum financial investment. However, the 40 percent increase can be reached by counting all the capital contributed by other investors, even investors who are United States citizens, lawful permanent residents, or others not interested in applying for status.
  • Investment can be in cash, equipment, inventory, other tangible property, cash equivalents, or an indebtedness secured by assets owned by the entrepreneur, provided that the entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise are not used to secure any of the indebtedness. A loan to the commercial enterprise or any other debt arrangement between the entrepreneur and the new commercial enterprise does not constitute an investment.
    • All capital is valued in U.S. dollars and at fair market value.
    • Petitioner must establish that the investment comes from accounts under his name. Investment can come from funds in joint account by petitioner and spouse. This does not extend to joint accounts by other family members.
    • Petitioner must provide evidence of the source of funds and that they are legitimate.

Evidence Required

Regarding the enterprise

  • Articles of incorporation or business formation document
  • Authorization to do business in the state.

Regarding investment documents

  • Evidence of investment, which may include bank statements, evidence of purchased assets, evidence of property transferred from abroad, stock certificates given for investment; or loan or mortgage agreements.
  • Evidence that s/he is corporate officer and director; or
  • If partnership, the partners' management or policy making activities consistent with rights, powers and duties normally granted limited partners under ULP Act.

Lawful source of funds

  • Foreign business registration records
  • Corporate, partnership, personal tax returns filed within five years 
  • Evidence identifying other sources of capital
  • Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, administrative actions, and any private civil actions involving monetary judgments within the past 15 years.
  • Where source is sale of house or business, investor needs to provide sales contracts or deeds.
  • Petitioner’s level of income during previous years.

Job creation of 10 jobs

  • I-9s, tax records including proof that of working full time
  • Comprehensive business plan demonstrating where the 10 employees will be hired and giving approximate dates within the next two years.

Petitioner will be engaging in business on day-to-day basis or through policy formation

  • Title and description of job duties
  • Evidence that s/he is corporate officer and director; or
  • If partnership, the partners' management or policy making activities consistent with rights, powers and duties normally granted limited partners under ULP Act.

Targeted Employment Area (where applicable)

  • Evidence of statistical area
  • Letter from state agency that the area has high unemployment.