EB-5 Visa Guide

Overview

The EB-5 is the employment-based, fifth-preference immigrant classification for foreign nationals who make a qualifying capital investment in a U.S. commercial enterprise that creates or preserves at least 10 full-time jobs for qualifying U.S. workers. The classification is governed by section 203(b)(5) of the Immigration and Nationality Act, as amended by the EB-5 Reform and Integrity Act of 2022 (RIA). In practice, an EB-5 case succeeds or fails on three linked showings: the investor commits qualifying capital from a lawful source, the capital is irrevocably at risk in a new commercial enterprise, and the enterprise creates at least 10 full-time jobs within the sustainment period. The main agencies involved are U.S. Citizenship and Immigration Services and U.S. Department of State.
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The 2022 RIA reauthorized the Regional Center Program through fiscal year 2027 and restructured the EB-5 program in several material respects. Minimum investment amounts are $800,000 for investments in Targeted Employment Areas (rural areas, high-unemployment areas, and infrastructure projects) and $1,050,000 for non-TEA investments. The RIA also created reserved visa set-asides: rural projects (20 percent), high-unemployment area projects (10 percent), and infrastructure projects (2 percent). These reserved set-asides have provided materially faster processing for India- and China-born investors who would otherwise face EB-5 backlogs in the unreserved category.
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The most practical way to think about the EB-5 in 2026 is this: it remains the most direct pathway to lawful permanent residence for foreign nationals with substantial investable capital, particularly through Regional Center investments in qualifying rural or high-unemployment area projects that access the reserved visa set-asides. Two timing considerations are critical. First, the RIA grandfathering provision protects investors whose I-526/I-526E petitions are filed by September 30, 2026, against future program lapses. Second, the Regional Center Program authorization expires September 30, 2027; reauthorization is uncertain. The EB-5 is a weaker fit when capital availability is limited, when the investor is unwilling to accept the multi-year processing and capital sustainment requirements, or when EB-1A, EB-1C, or EB-2 NIW would more naturally accommodate the case.

Eligibility requirements

Investment requirements

The investor must commit at least $800,000 (TEA, rural, or infrastructure projects) or $1,050,000 (all other projects) to a new commercial enterprise. New commercial enterprise means any for-profit entity formed for the ongoing conduct of lawful business, established after November 29, 1990, or established earlier and either purchased and reorganized or expanded through the investment. Investment must be in the form of cash, equipment, inventory, secured indebtedness, tangible property, or cash equivalents.

Beneficiary requirements

The investor must be the legal owner of the invested capital and must have obtained the capital through lawful means. There is no nationality restriction on EB-5 eligibility, and there is no employment, education, or business experience requirement. The investor must commit the capital and demonstrate that it is at risk; passive investment with capital secured against loss does not qualify.

Enterprise and job creation requirements

The new commercial enterprise must create or preserve at least 10 full-time positions for qualifying U.S. workers (U.S. citizens, lawful permanent residents, or other work-authorized individuals). Full-time means at least 35 hours per week. Direct EB-5 investments require direct job creation; Regional Center investments may count direct, indirect, and induced jobs through USCIS-approved economic methodology, which significantly broadens the qualifying employment base.

Evidentiary criteria

The EB-5 case turns on documentary proof across four interlocking pillars. The investor bears the burden of establishing each element by a preponderance of the evidence, and the documentation burden is materially heavier than other employment-based immigrant classifications.The E-3 case turns on documentary proof across three interlocking pillars. The applicant bears the burden of establishing each element to the satisfaction of the adjudicating consular officer or USCIS adjudicator.

‍Lawful source and path of funds
‍The investor must establish that the invested capital was obtained through lawful means. Acceptable evidence includes employment records, business income statements, tax returns, sale-of-asset documentation, inheritance records, gift documentation, and detailed records of intermediate transactions tracing the funds from source to the U.S. enterprise. Source-of-funds analysis is the most labor-intensive component of the petition and frequently extends to multiple generations of transactions.

‍Investment in new commercial enterprise
‍Acceptable evidence includes capital contribution documentation, escrow records, bank statements showing transfer to the U.S. enterprise, equipment purchases, lease agreements, and corporate organizational documents. For Regional Center investments, the investor must additionally document the relationship to the approved Regional Center and the qualifying project.

Capital at risk and committed
The investor must demonstrate that the invested capital is irrevocably committed to the enterprise and subject to partial or total loss if the enterprise fails. Federal court rulings and USCIS guidance in 2025 confirmed a two-year sustainment period during which the capital must remain at risk. Capital that is recoverable without business risk, secured by collateral, or guaranteed against loss does not satisfy the at-risk requirement.

‍Job creation
At the I-829 removal-of-conditions stage (typically filed two years after conditional residence is granted), the investor must demonstrate that at least 10 qualifying jobs have been created. Direct investments require evidence of direct hiring (payroll records, I-9 verification, tax filings). Regional Center investments may rely on economic methodology approved at the project level, requiring evidence that the project has proceeded according to the methodology’s assumptions (capital deployment, construction milestones, revenue thresholds).

Application process

Cost & fees

The following government and professional fees apply to a standard EB-5 case and exclude the investment amount itself. Total costs for EB-5 are materially higher than other employment-based immigrant classifications due to the complexity of source-of-funds analysis and the multi-stage filing structure.

*Government fees are regularly updated and should be verified

Priority dates and country backlogs

The priority date is established on the date Form I-526 or I-526E is filed with USCIS. Country backlogs apply differently in EB-5 than in other employment-based categories due to the RIA reserved visa set-asides. The unreserved EB-5 category faces backlogs for India- and China-born investors measured in years; rest-of-world investors generally face current or near-current priority dates. The reserved categories (rural, high-unemployment, infrastructure) have separate visa allocations that as of 2026 remain current for all countries, including India and China, which makes them the dominant choice for investors from oversubscribed countries.

Dependents and derivative status

The spouse and unmarried children under the age of 21 of an EB-5 principal investor may obtain conditional and then unconditional lawful permanent resident status as derivative beneficiaries under the principal’s single qualifying investment. No additional capital is required for derivative beneficiaries. Derivative children must be unmarried and under 21 at the time of adjudication; the Child Status Protection Act (CSPA) provides limited relief from “aging out” during processing delays. Family members may pursue adjustment of status concurrently with the principal where the priority date is current.

Maintaining status during EB-5

EB-5 is an immigrant pathway with materially longer processing than other employment-based categories. Investors must maintain a separate nonimmigrant status during processing or remain abroad through consular processing. The most common bridge classifications for EB-5 investors are E-2 (for treaty country investors developing the same enterprise), B-1 business visitor (for periodic monitoring visits), and L-1A or H-1B where the investor also qualifies on other grounds. Once Form I-485 is filed and pending for 180 days (where applicable), the investor may obtain an Employment Authorization Document and Advance Parole.

Common adjudication issues

Related visa categories

The following classifications are commonly evaluated alongside EB-5. The principal differentiators are the investment threshold, the employer sponsorship requirement, and the underlying eligibility framework.