The EB-5 Business Plan: requirements and how to assess it

The EB-5 Business Plan is one of the core documents of an I-526E petition filed with U.S. Citizenship and Immigration Services (USCIS). It is not an ordinary business plan; it must meet the strict legal standard set by the Matter of Ho precedent in 1998. A deficient Business Plan, or one that does not meet USCIS criteria, can lead to an RFE, NOID or denial.

For Vietnamese investors joining thevisa EB-5, understanding the EB-5 business plan not only helps assess the quality of a project before committing capital but also provides a basis for tracking implementation progress over the following 5–7 years. This article analyses in detail the legal requirements, the mandatory components and how to assess a quality EB-5 Business Plan.

The role of the EB-5 business plan in the I-526E petition

The EB-5 business plan serves as the document proving that the project can deliver on its commitments regarding investment capital andjob creation. When adjudicating the I-526E,U.S. Citizenship and Immigration Services (USCIS)uses the Business Plan as a strategic map to assess the project’s feasibility.

The specific roles of the Business Plan in an EB-5 petition include:

• Proving the project will create at least 10 full-time jobs per investor within a reasonable time
• Setting out a plan for using the investment capital in line with the purpose of the EB-5 programme
• Identifying the legal structure of the New Commercial Enterprise and the Job Creating Entity
• Proving the project’s financial sustainability during the 2-year conditional period and beyond
• Providing a basis for comparing the original projections with actual results when filing the I-829

For projects through aRegional Center, the Business Plan usually comes with an Economist Report and Form I-956F. For EB-5 Direct projects, the Business Plan is the only main document proving the job creation plan and must include details of hiring direct employees.

The Matter of Ho standard for EB-5 business plans

Matter of Ho is a 1998 precedent decision issued by the Associate Commissioner of the US Immigration and Naturalization Service, setting the legal standard for Business Plans in EB-5 petitions. The precedent remains the core guidance document to this day and is referenced directly in the USCIS Policy Manual.

According to Matter of Ho, an EB-5 Business Plan must meet three criteria at once: comprehensive, credible and realistic.

The “Comprehensive” criterion

The comprehensive criterion requires the Business Plan to cover every important aspect of the project, from concept to implementation. A plan cannot merely give an outline; it must go into detail on each component.

The mandatory content under the comprehensive criterion includes:

• A description of the business and its specific products/services
• Analysis of the target market, competitors and competitive advantages
• Organisational structure and management team
• A detailed marketing and sales plan
• 5-year financial projections with a full set of projected financial statements
• A phased job creation timeline
• Exit strategy

The “Credible” criterion

The credible criterion requires the information and projections in the Business Plan to be supported by real data and proven methodology. USCIS will scrutinise the sources of the figures and assumptions.

Factors that increase a Business Plan’s credibility:

• Market data cited from reputable sources (industry reports, government statistics)
• Valuation and revenue forecasting methods based on industry benchmarks
• Management team experience and capability demonstrated through their track records
• Signed letters of intent (LOIs), purchase agreements or lease agreements
• Evidence of financing from other sources (debt financing, equity from partners)

The “Realistic” criterion

The realistic criterion requires the projections and targets in the Business Plan to be reasonable given market conditions and the project’s actual capabilities. USCIS is particularly wary of Business Plans with overly optimistic or unsupported projections.

Signs that a Business Plan is unrealistic:

• Projected revenue growth far exceeding the industry average
• A job creation timeline that does not match the scale of the project
• Projected operating costs significantly below industry benchmarks
• Ignoring obvious market risks (downturns, competition, regulation)
• Revenue projections that do not match the customer base or production capacity

The mandatory components of an EB-5 business plan

According to the USCIS Policy Manual, Volume 6, Part G, an EB-5 Business Plan must include specific components organised logically and in a traceable way.

Market analysis and competitive advantage

This section must clearly set out the target market, market size, growth trends, main competitors and the project’s competitive advantages. The data must come from reputable sources and include specific citations.

For real estate projects (a common type of EB-5 project), the market analysis must include data on occupancy rates, average rents, average construction times in the area and the profit margins of comparable projects.

5-year financial projections

The financial projections must include 3 core statements for each of the 5 years: the Income Statement, the Cash Flow Statement and the Balance Sheet.

Every assumption in the projections must have a note explaining its basis. For example, projected revenue must be calculated from specific assumptions about the number of customers × the average price; payroll costs must be based on the number of employees × the average salary.

Job creation timeline

This is the most important component of an EB-5 Business Plan because it relates directly to the programme’s core requirement. The timeline must state clearly:

• The number of jobs to be created each quarter or each year
• The breakdown of jobs into direct, indirect and induced (for a Regional Center)
• The job-counting methodology applied (IMPLAN, RIMS II, REDYN for indirect/induced)
• The start and end of each hiring round
• The relationship between the job creation timeline and project implementation progress

Legal and management structure

The Business Plan must clearly describe the legal structure of theNew Commercial Enterprise and Job Creating Entity, including:

• The type of entity (LLC, Limited Partnership, Corporation)
• The relationship between the NCE and the JCE (for Regional Center structures)
• The system for managing capital and distributing profits
• The management team and the specific role of each position
• Decision-making and corporate governance processes

Exit strategy

Although it is not a strict legal requirement under USCIS rules, an exit strategy is usually included in the Business Plan to demonstrate the project’s sustainability and the mechanism for repaying investors.

Common exit methods in EB-5:

• Refinancing once the project is completed and stabilised
• Selling the project to a new owner
• An IPO (for large projects, rare)
• Liquidating assets and distributing proceeds to investors

How to assess an EB-5 business plan

For Vietnamese investors, assessing the Business Plan before committing capital is an important step in reducing risk. The assessment should be carried out together with an immigration lawyer and an independent financial expert.

Checking compliance with Matter of Ho

The first step is to review whether the Business Plan fully meets the three Matter of Ho criteria. Check specifically:

• Whether the document covers all the mandatory components
• Whether each assumption and projection is supported by data or sound methodology
• Whether the targets are within the realistic limits of the industry and market

Cross-checking against the actual project records

The Business Plan does not stand alone; it must be consistent with the project’s other documents. Cross-checking helps detect errors or contradictions:

• Compare the number of jobs projected in the Business Plan with the Economist Report
• Check the budget in the Business Plan against the budget in Form I-956F
• Check whether the legal structure described in the Business Plan matches theLimited Partnershipor not
• Review whether the implementation timeline is reasonable compared with the construction contract and local permits

Assessing the track record of the plan writer

The quality of a Business Plan depends heavily on the experience and reputation of whoever prepared it. Investors should ask for information on:

• How many years of experience they have preparing EB-5 Business Plans
• The number of successful I-526E petitions with Business Plans they prepared
• The rate of Business Plan-related RFEs in their previous cases
• Their capability in market analysis and financial projections

Reviewing risk scenarios

A good Business Plan must identify the main risks and have a plan to deal with them. When assessing it, investors should ask hypothetical questions:

• If the market falls 20%, will the project still create the full 10 jobs
• If construction costs rise 15%, will the budget still be enough to complete the project
• If implementation is delayed by 6 months, will it affect the 2-year conditional period
• If one investor withdraws from the project, will the remaining investors be affected

Additional requirements after the EB-5 RIA 2022

EB-5 Reform and Integrity Act 2022 (RIA)has added several new requirements for Business Plans, especially for projects through a Regional Center.

Under the RIA, a Regional Center must file Form I-956F for each offering before investors can file the I-526E. Form I-956F includes the project’s detailed Business Plan together with supporting documents. This change is intended to ensure USCIS assesses the project as a whole before each investor commits capital.

The RIA also requires periodic reporting on project implementation progress, material changes and delivery of job creation commitments. The original Business Plan must include reporting and transparency mechanisms to meet these requirements.

For projects in the reserved categories (Rural, High Unemployment Area, Infrastructure), the Business Plan must prove that the project is genuinely in a qualifying area through geographic data, unemployment data or evidence of its infrastructure nature as defined by the RIA.

Conclusion

A high-quality EB-5 business plan is decisive not only for the success of the I-526E petition but also for whether the project actually creates jobs and protects the invested capital. The Matter of Ho standard, with its three requirements of comprehensive, credible and realistic, remains the guiding principle for preparing and assessing Business Plans to this day.

For Vietnamese investors, assessing the Business Plan before committing capital should not be taken lightly. Combining an experienced EB-5 immigration lawyer and an independent financial expert in the review helps identify weaknesses early, leading to sound investment decisions and a better chance of receiving aUS permanent resident cardin the shortest possible time.