EB-5 Immigrant Investor Visa

Introduction: Investing Toward U.S. Permanent Residency

The EB-5 Immigrant Investor Visa offers a unique route to U.S. permanent residency through capital investment and job creation. Designed to stimulate the American economy, the EB-5 program allows foreign nationals—and their qualifying family members—to obtain lawful permanent residency by investing in new commercial enterprises that contribute meaningfully to U.S. employment growth.

Though promising in opportunity, the EB-5 process is legally and financially complex. It demands meticulous documentation, rigorous compliance with USCIS standards, and a clear, lawful financial history. At OCHOA PLLC, we provide focused immigration legal services to foreign investors navigating the EB-5 pathway, ensuring clarity, legal integrity, and strategic planning at every stage of the process.

What Is the EB-5 Immigrant Investor Visa?

Established in 1990 under the Immigration Act, the EB-5 Immigrant Investor Visa is a fifth-preference employment-based immigrant category designed to attract foreign capital into the U.S. economy. Qualified investors are eligible to obtain a conditional green card that can later be converted into permanent residency, provided they satisfy strict statutory and regulatory conditions.

The program is administered by the United States Citizenship and Immigration Services (USCIS) and permits up to 10,000 EB-5 visas annually. A single investment application can cover the principal investor, their spouse, and unmarried children under 21 years of age.

Types of Investment Pathways in the EB-5 Program

Investors may pursue the EB-5 visa through two distinct models: Direct Investment and Regional Center Investment. Each pathway has specific implications for investor involvement, job creation calculations, and evidentiary requirements.

Direct Investment

Direct investment involves contributing capital to a business that the investor actively manages or controls. The enterprise must be a new commercial entity created after November 29, 1990, or a substantially restructured or expanded business.

Requirements include:

• Active involvement in operations or policy formation

• Creation of at least 10 direct full-time jobs

• Assumption of both risk and return within the business model

Examples may include restaurants, manufacturing operations, service businesses, or real estate ventures involving managerial oversight. 

Regional Center Investment

Alternatively, investors may place capital into a USCIS-designated Regional Center—an economic unit created to spur growth in targeted geographic areas. These centers aggregate EB-5 capital into development projects such as infrastructure, hospitality, or residential developments.

Key characteristics include:

• Acceptance of indirect or induced job creation (through economic modeling)
• Minimal day-to-day involvement by the investor
• Suitability for passive investors focused on residency rather than operations
  
  

Despite its flexibility, this model still demands due diligence to ensure the investment complies with the “at-risk” capital rule and avoids exposure to fraud or mismanagement. 

Eligibility Criteria and Investment Requirements

Foreign nationals must meet several statutory requirements to qualify for the EB-5 visa:

Minimum Capital Investment

As of the most recent USCIS regulations, the required investment amounts are:

TEAs are defined as either rural areas or areas with high unemployment, determined based on U.S. Census and Bureau of Labor Statistics data. A rural area is one not within a metropolitan statistical area or a municipality with a population over 20,000.

Job Creation Requirement

The investment must create at least 10 full-time jobs for qualifying U.S. workers. These jobs must:

• Be direct (for direct investments) or indirect (for regional centers)
• Last a minimum of 35 hours per week
• Be created within two years of conditional residency

Immediate family members of the investor and the investor themselves do not count toward this total.

New Commercial Enterprise

A new commercial enterprise is any lawful, for-profit business engaged in ongoing commercial activity, including:

• Sole proprietorships
• Partnerships
• Holding companies
• Joint ventures
• Corporations
• Other publicly or privately owned business structures

The business must be created after November 29, 1990, unless the investor is significantly restructuring or expanding an existing entity.

Lawful Source of Funds

USCIS requires a detailed showing that all invested capital was obtained lawfully. Acceptable sources include:

• Earnings from employment or business activity
• Sale of property
• Gifts (with appropriate tax documentation)
• Inheritance
• Loans secured by the investor’s personal assets

This documentation must include bank records, wire transfer receipts, tax returns, and contracts proving the origin of funds.

At-Risk Requirement

The capital must be fully at risk for the purpose of generating a return. This entails:

• No guaranteed returns or redemptions
• No contractual assurances of return
• Active deployment of funds toward qualifying business activity

Simply holding equity or passive stock positions will not satisfy this requirement. The investment must reflect actual commercial risk.

The EB-5 Application Process: Step-by-Step

Step 1: File Form I-526

The EB-5 process begins with the submission of Form I-526, Immigrant Petition by Standalone Investor (or I-526E for regional center investments). This petition must establish:

• The investor’s identity and nationality
• The lawful source of invested funds
• That a qualifying investment has been made or is actively in progress
• That the business meets USCIS criteria
• Evidence of job creation or plans to meet that requirement

USCIS will issue a Request for Evidence (RFE) if documentation is deemed insufficient.

Step 2: Obtain Conditional Permanent Residency

Once Form I-526 is approved and the priority date is current:

• Investors inside the U.S. file Form I-485 (Adjustment of Status)
• Investors outside the U.S. proceed with consular processing via the National Visa Center (NVC) and attend a visa interview

If granted, the investor receives a two-year conditional green card.

Step 3: File Form I-829 to Remove Conditions

Within 90 days before the two-year conditional period ends, investors must file Form I-829, Petition by Investor to Remove Conditions. This petition must demonstrate:

• The full amount of capital was invested
• The investment has remained at risk
• At least 10 full-time jobs were created or are in progress

Upon approval, the investor and eligible family members receive unconditional lawful permanent resident status.

Common Legal Issues in EB-5 Applications

The EB-5 process is fraught with nuanced compliance requirements. Legal issues often arise concerning:

• Incomplete source of funds tracing
• Inadequate job creation documentation
• Misrepresentation in investment contracts
• Regional center compliance failures
• Timing discrepancies between investment and job creation

Legal representation is often critical in proactively mitigating these challenges and presenting a cohesive, credible, and fully compliant petition.

Conclusion

The EB-5 Immigrant Investor Visa offers a powerful path to permanent residency through meaningful capital investment and economic contribution. However, the legal and evidentiary thresholds are high, and success depends on the clarity, compliance, and credibility of the petition. 

At OCHOA PLLC, we provide immigration legal services tailored to the EB-5 investor’s journey, delivering strategic guidance rooted in financial transparency, statutory compliance, and USCIS adjudication realities. From initial I-526 filings through final I-829 approvals, we support our clients with structure, foresight, and precision.