Can someone in the United States as a spouse on a nonimmigrant dependent visa, such as F-2, J-2, or H-4, apply for EB-5?

Yes, a spouse on a nonimmigrant dependent visa, including F-2, J-2, or H-4, may apply for the EB-5 visa provided they meet the eligibility criteria of the EB-5 program. If a nonimmigrant dependent visa holder applies for the EB-5 visa, their spouse—the primary nonimmigrant visa holder—may be included as a derivative beneficiary on the dependent’s EB-5 application.

EB-5 Visa: Eligibility

To begin with, any prospective EB-5 investor must meet the financial requirements for the EB-5 program.

The minimum investment amount currently stands at $1,050,000, while projects located in targeted employment areas (TEAs) have a reduced investment amount of $800,000. A region in the United States with a TEA designation is defined as having an unemployment rate that is 150% of the national average, or a rural area that is located outside a metropolitan statistical area (MSA) with a population of 20,000 or more.

In addition, the EB5 investor’s investment capital must be lawfully sourced and remain “at risk”. When adjudicating the EB-5 investor’s I-526 petition, United States Citizenship and Immigration Services (USCIS) will examine the origins of the investor’s funds to ensure all funds are legitimate and were lawfully obtained. The EB-5 investor must also irrevocably commit their investment funds to their chosen project, whether directly into the business or into an escrow account. The “at risk” requirement refers to the equal likelihood of financial gain and loss that the EB-5 investor must incur with their investment.

Beyond the mandated financial requirements, the EB-5 investor must submit a business plan that outlines how they will meet the job creation requirement. As part of the EB5 program’s motive to stimulate the U.S. economy, every EB-5 investor must generate at least 10 full time jobs through their investment. These positions must be filled by authorized U.S. workers. Furthermore, the EB-5 investor must invest in a project or business that satisfies the criteria of an eligible new commercial enterprise (NCE).

Finally, all EB-5 investors should be aware of the differences and respective benefits of direct investment and investing through a regional center. One distinguishing factor between the two models is the expectation towards employment creation; an EB-5 investor following the direct model can only count direct jobs towards their quota, while regional center investors may count induced and indirect jobs towards their tally.