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Must the new commercial enterprise (NCE) be profitable for an EB-5 investor to gain permanent resident status?

The EB-5 program does not require the new commercial enterprise (NCE) to be profitable. United States Citizenship and Immigration Services (USCIS) is mainly concerned with ensuring that each EB-5 investment is compliant with its regulations and that it creates at least 10 full-time jobs. Of course, if a business plan is clearly not viable, USCIS will likely reject the EB-5 investor’s Form I-526, Immigrant Petition by Alien Investor. If the NCE becomes unprofitable after the I-526 petition is approved, however, its profitability should have no bearing on USCIS’s adjudication of Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. The important thing is for the NCE to avoid bankruptcy and create the necessary number of jobs.

How can EB-5 project developers create viable business plans that will be approved by USCIS? The 1998 Matter of Ho court ruling provides an excellent outline of a successful EB-5 busines plan, which includes a description of the project, the target market, the developers’ financial expectations, and plans for job creation.

USCIS must be able to verify the truthfulness of the information contained in the business plan. Therefore, it is critical for the business plan to support its financial projections with credible data; it must include references to industry publications and third-party market studies. Project developers should also commission an independent analysis of their business plan. The advice provided by experienced regional centers and immigration attorneys can help project developers keep track of the EB-5 program’s complex regulations.

Moreover, the business plan must be consistent regarding important details such as construction start and end dates and financial projections. USCIS favors EB-5 projects that plan for possible setbacks, so the business plan should show how the project will handle potential issues such as a shortage of EB-5 investment capital. For instance, the business plan might show that the project plans on creating more than 10 jobs per investor.