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The employment-based 5th preference category, also known as employment-creation visas, is available to those investors, who have invested, or are in the process of investing, lawfully obtained capital in a new commercial enterprise employing at least 10 full-time US workers. The amount of the investment must be at least one million dollars, unless the investment is to be in a targeted employment area, in which case the investment need only be five hundred thousand dollars.

To qualify as an immigrant investor, the alien must invest in a new commercial enterprise. This can be done by starting a new business; by purchasing and restructuring a new business; by expanding and substantially changing the net worth or number of employees in an existing business; or by investing in a troubled business, so that there is a forty percent increase in the net worth or in the number of employees of the business.
Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to, a sole proprietorship, partnership, holding company, joint venture, corporation, business trust, or other entity that may be publicly or privately owned. This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.
Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur 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. All capital shall be valued at fair market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for purposes of the Act.
To qualify in the EB5 category, the investment must create full-time employment for at least 10 US citizens, lawful permanent residents, or other immigrants lawfully authorized to be employed in the United States. While an investor may employ his family members in the new enterprise, the spouse and children do not count toward the 10-employee minimum. Employee means an individual who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from the new commercial enterprise. This definition does not include independent contractors. 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.
As stated previously, the investment must be $1 million unless the investment is in what is known as a "targeted area." A "target area" is defined as a rural area or an area that has experienced high unemployment. An area not within a metropolitan statistical area or the outer boundary of any city or town having a population of 20,000 or more is considered a rural area. The Department of Commerce of each state publishes a list of its targeted areas, and should be contacted in order to obtain a copy.
The actual evidence required to establish the amount and type of investment is quite substantial, and is outlined in great detail in the regulations.
Another program within the EB-5 category is known as the Regional Center "Pilot" program. This program is ideal for the retiree or inactive investor due in large part to the "indirect employment creation" requirement and possible limited partner features of this program. The regional center program removes the 10 employee requirement of the regular program and substitutes the less-restrictive "indirect employment creation," which allows the investor to qualify for an EB-5 investor green card without hiring 10 people in the company that the investor has invested in.
Also, the EB-5 management requirement is minimal in that the investor can be a limited partner with only a policy-making role and still qualify. Thus, for those who are not interested in day-to-day management or running an active business, regional center programs offer a more acceptable form of investment for the inactive investor, than do most regular program investments. Another advantage of regional center programs is that the investor is not required to live in the place of investment; rather, he or she can live wherever he/she wishes in the United States.
Regional center EB-5 petitions are given priority by USCIS, which will often result in a quicker approval. Each regional center program must be pre-approved by USCIS in order to be eligible to apply for EB-5 green cards.
In the typical regional center investment, the alien will invest $500,000.00 ($1 million in some centers) and he or she will acquire a partnership interest in the investment. Usually, the money must remain invested for a period of five years, after which time the investor can continue as a partner in the business, or can sell their interest in the investment. Please visit our website for more information on the regional center pilot program, and a list of qualified regional centers.
A petition for employment creation aliens, whether through regular investment or through the regional center pilot program, is filed on immigration form I-526, Immigrant Petition for Alien Entrepreneur. This petition must be filed with the immigration service center having jurisdiction over the place of the proposed investment. When the petition is approved, the alien, together with the spouse and unmarried minor children, will file their applications for immigrant visas at a US consulate if they are outside of the United States, or will file for adjustment of status with the immigration service if they are in the United States and eligible for adjustment of status.
In order to deter investor/employment creation visa fraud, the law provides for a two-year conditional permanent residence status. Between 21-24 months after the conditional permanent residence has been approved, the investor must reconfirm that the investment has been made or is still in place and that the employment requirement has been fulfilled or maintained. At that time, the investor will file Form I-829, Petition by Entrepreneur to Remove Conditions, with USCIS. If the investor has complied with all conditions of the investment, and no fraud is found in the petition process, the conditions will be removed and permanent residence will be granted.