Generally speaking, any for-profit business is eligible for EB-5 funding. To satisfy the program’s requirements, a business must meet the definition of a new commercial enterprise (NCE), have a compliant business plan, and ultimately create 10 jobs per EB-5 investor. An NCE is defined as any for-profit organization that was created or restructured after November 29, 1990, and is engaged in lawful commercial activity.
A critical stage of the EB-5 process is to compile a proactive business plan. Project developers must consult with experienced immigration counsel, regional center operators, and economists to ensure that their business plans will be approved by United States Citizenship and Immigration Services (USCIS). The Matter of Ho court ruling provides a useful outline of the main elements of a successful EB-5 business plan. It is also essential for project developers to support their financial and marketing predictions with credible sources. For instance, the business plan should cite third-party sources such as market studies and economic analyses.
Moreover, the business plan must show how the NCE will fulfill USCIS’s criteria, including the job creation and at-risk requirements. USCIS must receive evidence that the EB-5 investment capital will be used to generate employment; if the business plan is unable to prove this, it will likely be denied.
Regarding the job creation requirement, direct investment projects will only be able to count employment that appears on the NCE’s payroll. In contrast, regional center-sponsored project developers can also count indirect and induced jobs, which are generated by the EB-5 project’s expenditures in the local community. An economic report must be used to calculate indirect and induced jobs, and USCIS will only count certain project expenditures toward creating such employment.
Further, every directly created job must be filled by a worker with employment authorization, last for a minimum of two years, and be full time (at least 35 hours per week).