EB-5 Investment Visa

Silicon Valley Immigration Lawyer

On November 29, 1990, Congress established the EB-5 program as a form of business immigration. This program brings new investment capital into the United States and creates jobs for U.S. workers.

The EB-5 program has three core requirements:

• The immigrant investor must invest capital in the United States.
• The investor must create a new commercial enterprise.
• The investment must create jobs for qualifying employees.

Investment Capital Requirements for the EB-5 Program

The EB-5 program requires the applicant to invest capital in the United States. The investor must provide detailed documentation of the funds’ source and prove that every dollar was obtained legally. Investors must invest or actively be in the process of investing $1,000,000.

Applicants should gather bank statements, sale contracts, or loan records to show how they obtained funds. U.S. authorities will review these records to confirm that the entire investment amount came from lawful sources. Careful organization of this information reduces delays and strengthens the EB-5 visa petition.

There is an exception to the $1,000,000 capital requirement for those who invest or are in the process of investing $500,000 in a targeted employment area.

A targeted employment area can be either:

• A rural area
• An area that has experienced high unemployment of at least 150% of the national average

A rural area is an area that does not fall within a metropolitan statistical area, or is not within the outer boundary of any city or town with a population of 20,000 or more.

The investment can take the following forms:

• Cash
• Cash equivalents
• Equipment
• Inventory
• Other tangible property

The law also allows capital to include a promissory note, meaning an immigrant investor's secured promise to pay. The investor must back the promissory note with personal assets, listing them specifically in the note. All capital is valued at the fair market value in United States dollars at the time of investment.

When documenting capital contributions, present credible appraisals for property, detailed inventories, or proof of asset values to show you meet fair market value standards. If you organize this supporting evidence clearly, you reduce the risk of delays or requests for additional documentation from reviewing officers.

The immigrant investor must actually place their capital "at risk." There must be a chance the original capital could be lost or generate a profit. Promising to return any portion of an investor’s required capital negates the “at risk” requirement and invalidates the investment under the EB-5 program.

Defining a New Commercial Enterprise

A "new commercial enterprise" is a for-profit activity formed for the ongoing conduct of lawful business and established after November 29, 1990.

Building a new commercial enterprise means more than forming a company on paper. The business must conduct ongoing activity by producing goods or providing services in compliance with all local and federal regulations. Investors often consult legal and business professionals during formation to help meet these requirements. Careful setup supports eligibility while giving the business a solid operational foundation.

A new commercial enterprise may be structured as:

• Partnership
• Holding company
• Joint venture
• Corporation
• Public or privately owned entity

Investors may also put funds into an existing business if their investment reorganizes the business so that a new commercial enterprise results. The business must undergo substantial changes, not just minor or superficial modifications, to qualify as a new commercial enterprise under EB-5 rules.

If you invest in an existing business, provide clear documentation to show how your capital transforms or expands the company in a meaningful way. Records may include restructuring documents, evidence of new business activities, or plans to increase employment. The goal is to demonstrate that the business is substantially renewed or expanded, not simply changed in name or appearance.

An investor can also qualify by increasing the net worth or number of employees in an existing business. A “substantial change” means raising the net worth or the number of employees by at least 40% through the new investment.

Creation of Jobs From the Investment

The EB-5 investment must lead to the creation of jobs for qualifying employees. The investment must provide full-time employment for at least 10 qualifying U.S. citizens, permanent residents, or other immigrants who are lawfully authorized to work in the United States.

Applicants must show—through business plans, tax returns, and payroll records—that the enterprise hires the required workers. Clearly identifying employees as opposed to independent contractors or seasonal staff is critical. Most applicants also include an employment timeline, outlining planned hiring to meet program requirements.

Employees must receive wages directly from the new commercial enterprise. Temporary, seasonal, or contractor positions do not count as full-time jobs for purposes of the EB-5 visa program.

Applying for an EB-5 Visa

To obtain an EB-5 visa, the applicant must file an application with USCIS accompanied by evidence showing that the investor has invested, or is actively in the process of investing, lawfully obtained capital in a new commercial enterprise that will create at least 10 full-time positions. Upon approval, the immigrant receives a conditional resident green card for two years.

You must prepare all financial, organizational, and employment documentation thoroughly before filing your application. Each applicant should review the forms for accuracy and submit business plans and all supporting documents required by U.S. immigration authorities. Tracking deadlines and responding quickly to requests for further evidence keeps the process moving and avoids holdups.

To remove the conditions on the green card after two years, the investor must provide the following:

• Evidence that the immigrant investor invested or was actively in the process of investing the required capital;
• Evidence that the immigrant investor sustained the enterprise and investment;
• Evidence that the immigrant investor created 10 full-time jobs for qualifying employees.
• After the two-year conditional period, the investor must submit another application to USCIS to remove the green card conditions.

Common Pitfalls & How to Avoid Them

Many applicants encounter obstacles during the EB-5 visa process that can slow down or jeopardize their immigration plans. Some overlook key documentation requirements and face delays. Others misclassify workers or misunderstand what types of business activities qualify as “substantial changes”—both can result in compliance issues. 

To avoid these pitfalls, review all program rules before you begin and keep complete records of every transaction and organizational decision. Consulting a knowledgeable EB-5 visa attorney during each stage of the business immigration process can help you address complex matters such as proving lawful sources of funds or demonstrating job creation. Consistent communication and detailed documentation strengthen your application and support your progress if government agencies request additional information.

How Our Approach Supports Your EB-5 Journey

We draw on many years of legal experience and our background as immigrants to provide tailored support at every stage of the EB-5 process. Each client receives guidance from an attorney who listens closely to their goals and anticipates common questions. We communicate clearly, explain every legal requirement, and outline what to expect as your application moves forward.

Our team values transparency, offering flat fees and payment plans to assist clients with varying financial needs. By representing your best interests and relying on our knowledge of business immigration law, we help you move through the EB-5 process with greater confidence.

If you would like to apply for an EB-5 visa in San Jose, call Verma Law Firm today.