The EB-5 Investor Program was created in 1990 to attract immigrants who could create jobs for qualified U.S. workers through the investment of their capital into the U.S. economy.The Standard of Evidence

• USCIS requires that the petitioner or applicant of the EB-5 Program establish each element by a "preponderance of evidence." What this means is that the evidence the petitioner shows must make claims that are "more likely so than not likely so."
  
  
• This is a much lower standard of proof than what is typically standard for the U.S. criminal cases. Therefore it is much easier to satisfy the standard of proof.
  
  
• Basically, for the EB-5 application and petition, the petitioner doesn't have to remove all doubt from the USCIS adjudication, some doubt to the truth is acceptable as long as the evidence shows that the petitioners claim is "probably true."
  
  
• It is highly encouraged that the petitioner submit "relevant, probative, and credible evidence" to support his or her claims.
  
  

Lawful Investments

• USCIS works with the Fraud Detection and National Security directorate to ensure program integrity. They work on cases relating to fraud, national security, and public safety. It's important that the EB-5 investor conduct due diligence on the project or regional center he or she intends to invest capital.
  
  

Three Program Requirements:

The EB-5 Program has three main requirements.

1. Minimum Capital Investment

• The EB-5 Program was created with the idea in mind that the U.S. economy would benefit from capital investments made by immigrants. These capital investments would boost the U.S. economy and create at least 10 full-time jobs for qualified U.S. citizens per immigrant investor.
  
  
• The capital required is $1 million if the immigrant investor intends to invest in a new commercial enterprise. If the immigrant investor intends to invest in a targeted employment area (TEA) then the minimum capital required is lowered to $500,000.
  
  
• The EB-5 Program does not clearly define the degree of risk for the investor's capital, only stating that there must be some degree of risk in order to create ten U.S. jobs. USCIS only states that there cannot be a guaranteed return on the investment, otherwise there would be no risk involved.
  
  
• Capital is not only defined as cash, but equipment, inventory, and other tangible property.
  
  
• All the capital must be valued at the fair market value in U.S. dollars at the time of the investment and not at any different time.
  
  
• The investor must be able to establish proof that he or she is the owner of the capital intended for investment.
  
  
• The investor must be able to establish proof that the capital was acquired by lawful means.
  
  

2. New Commercial Enterprise

• The EB-5 investor must invest capital in a new commercial enterprise. A new commercial enterprise is defined by the USCIS as "any for-profit activity formed for the ongoing conduct of lawful business." "New" refers to any commercial enterprise established after November 29, 1990. Commercial enterprises established before that date may also qualify if it was restructured or expanded using the EB-5 investor's capital.
  
  
• Examples of new commercial enterprises: sole proprietorship, general or limited partnership, holding company and its wholly-owned subsidiaries, joint venture, business trust, and other public and private entities.
  
  
• The EB-5 Program requires that investors in EB-5 projects be involved in the management of the new commercial enterprise either through daily management or policy creation.
  
  
• Investing in a new commercial enterprise in a regional center. A regional center, as defined by the USCIS, is "any economic unit, public or private, which is involved with promotion of economic growth, including increased export sales, improved regional productivity, job created, and increased domestic capital investment."
  
  
• Before an EB-5 applicant invests in a regional center he or she should research to make certain the regional center is designated by the USCIS.
  
  

3. Minimum Job Creation Requirement

• The purpose of the EB-5 Program was to encourage immigrants to invest capital into the U.S. economy and create jobs for U.S. workers. That is why job creation is the third main requirement of the EB-5 Program.
  
  
• The EB-5 investor must invest capital in a new commercial enterprise.  That new commercial enterprise then must create 10 permanent, full-time jobs for qualified U.S. workers. A qualifying employee as defined by the USCIS is a, "United States citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized to be employed in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or an alien remaining in the United States under suspension of deportation."
  
  
• The alien entrepreneur, his or her spouse, and children do not count under this definition and therefore cannot be counted as "qualifying employees" for the EB-5 Program.
  
  
• These jobs must be full-time positions. Employees must work a minimum of 35 hours per week.
  
  
• In the case of "troubled businesses" jobs may be preserved rather than created. This, however, does not lower the requirement. Ten jobs must still be preserved, created or a combination of the two must take place.
  
  
• A "troubled business" as defined by the USCIS is, "a business that has been in existence for at least two years, has incurred a net loss for accounting purposes during the twelve- or twenty- four month period prior to the priority date on the alien entrepreneur's Form I-526, and the lsos for such period is at least equal to twenty percent of the troubled business's net worth prior to such loss.
  
  
• If the EB-5 applicant invests in a regional center project, then the 10 permanent jobs may created not only directly but indirectly or induced.
  
  

Fulfilling Requirements

• If the EB-5 investor can sufficiently prove he or she will meet the above requirements in the two year time frame then the immigrant investor will gain conditional lawful permanent residence.
  
  
• And if, after those two years after obtaining conditional lawful permanent residence status, the immigrant investor has conformed to the requirements of the EB-5 Program in the two year time frame, the immigrant investor may become an unconditional lawful permanent resident in the U.S.

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