Can a foreign business owned by a potential EB-5 investor somehow qualify for a direct EB-5 investment?

A foreign business is not eligible to qualify under the EB-5 investment program. For a business to qualify as a new commercial enterprise (NCE) and comply with the EB-5 regulations set by United States Citizenship and Immigration Services (USCIS) regulations, it must be a U.S. business.

An NCE is defined as a for-profit entity formed for the ongoing activity of lawful business. These include businesses formed as partnerships, holding companies, and sole proprietorships, among others.

Congress formed the EB-5 Immigrant Investor Program to promote economic growth in the United States. As such, EB5 investment projects, whether direct or regional center–sponsored, must not only be U.S. businesses but must also have the ability to create a minimum of 10 jobs for individuals authorized to work in the United States. And while a foreign business is not a qualifying entity for the EB-5 investment program, funds that are earned from an investor’s foreign business can be used to meet the minimum investment threshold. In other words, all or part of the investment capital for an EB-5 project can come from the profit of a foreign company. The only requirement is that the investor is able to prove that the funds were earned from a lawfully run business and that are subsequent taxes were paid.

Providing documentation to prove the source of investment funds is a requirement of all EB-5 projects, regardless of whether they are direct or regional center sponsored. Oftentimes, funds come from a variety of sources, so it is imperative that investors maintain thorough records, as any issues with their documentation could result in a delay in the already-lengthy I-526 petition adjudication process.

The goal of most EB-5 investors is to be granted U.S. permanent resident status for themselves and their immediate family members. In many cases, their minimum investment represents the entirety of their life’s savings. As such, it is highly recommended that they seek the help of an immigration attorney to guide them throughout the process to protect both their investment and immigration status as much as possible.