The EB-5 visa

The United States EB-5 visa, the fifth employment-based preference category, or the EB-5 Immigrant Investor Visa Program, was created in 1990 by the Immigration Act of 1990.

The programme provides a means for eligible immigrant investors to become lawful permanent residents – commonly known as “green card” holders – by investing substantial capital to finance a US business (known as a “new commercial enterprise”) provided that it creates at least 10 new full-time jobs for Americans and work-authorised immigrants.

An overview of the EB-5

Information	Details
Purpose	An investment in a new commercial enterprise
Eligibility requirements	An investment of USD 1,050,000 or USD 800,000 in aTargeted Employment Area (TEA)
Expiry	Conditional permanent residence valid for 2 years
Costs	An investment of USD 1,050,000 or USD 800,000
Additional conditions	Creating or preserving at least 10 full-time jobs for qualifying US workers
Website	uscis.gov/eb-5

United States Citizenship and Immigration Services (USCIS)administers the EB-5 Program. Under this programme, investors (together with their spouse and unmarried children under 21) are eligible to apply for lawful permanent residence (to become Green Card holders) where they:

• Make the required investment in a commercial enterprise in the United States; and
• Plan to create or preserve 10 permanent full-time jobs for qualifying US workers.

This programme is known as the EB-5, after the fifth employment-based preference visa that participants receive.

Congress created the EB-5 Program in 1990 to stimulate the US economy throughjob creationand capital investment from foreign investors.

In 1992, Congress created the Immigrant Investor Program, also known as the Regional Center Program, setting aside EB-5 visas for participants investing in commercial enterprises associated with regional centers approved by USCIS on the basis of proposals promoting economic growth.

Under the EB-5 Reform and Integrity Act, signed into law on 15 March 2022, the minimum investment required to qualify under the EB-5 programme is USD 1,050,000. However, the investment requirement is reduced to USD 800,000 where the investment is made in a qualifying infrastructure project or a Targeted Employment Area (TEA).

A detailed article onThe history of the EB-5 visa.

EB-5 requirements

USCIS administers the EB-5 Immigrant Investor Program, created by Congress in 1990 to stimulate the US economy through job creation and capital investment from foreign investors.

Under a programme first enacted as a pilot in 1992 and periodically reauthorised since, investors may also qualify for EB-5 classification by investing through regional centers designated by USCIS on the basis of proposals promoting economic growth.

All EB-5 investors must invest in a new commercial enterprise established:

• After 29 November 1990
• On or before 29 November 1990:
  • Purchased and the existing business restructured or reorganised in such a way that a new commercial enterprise results; or
  • Expanded through investment, resulting in an increase of at least 40% in net worth or the number of employees.

A new commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business, including:

• A sole proprietorship
• A partnership (whether limited or general)
• A holding company and its wholly owned subsidiaries (provided that each subsidiary is engaged in a for-profit activity formed for the ongoing conduct of lawful business)
• A joint venture
• A corporation
• A business trust
• A limited liability company
• Other entities, which may be publicly or privately owned

This definition does not include non-commercial activity, such as owning and operating a personal residence.

Job creation

An EB-5 investor must invest the required capital in a new commercial enterprise that will create at least 10 full-time positions for qualifying employees.

• For a new commercial enterprise not located within a regional center:The new commercial enterprise must directly create the full-time positions in order for them to count. This means that the new commercial enterprise (or its wholly owned subsidiaries) must be the employer of the qualifying employees.
• For a new commercial enterprise located within a regional center:The new commercial enterprise may create full-time positions directly or indirectly. Up to 90% of the job creation requirement for a regional center investor may be met by indirect jobs.
  • Direct jobs: establish an employer-employee relationship between the new commercial enterprise and the people it employs.
  • Indirect jobs: held outside the new commercial enterprise but created as a result of the new commercial enterprise.
• In the case of a troubled business:
  • An EB-5 investor may rely on job preservation. The investor must demonstrate that the number of existing employees is being, or will be, maintained at no less than the pre-investment level for at least 2 years.

A troubled business is one that has existed for at least 2 years and has incurred a net loss during the 12- or 24-month period before the priority date on the immigrant investor’sForm I-526. The loss over this period must be at least 20% of the business’s net worth before the loss. In determining whether the troubled business has existed for 2 years, USCIS considers successor entities of the troubled business in assessing whether they have existed for the same period as the business they succeeded.

A qualifying employeemust be a US citizen, a lawful permanent resident, or another immigrant authorised to work in the United States, including a conditional resident, temporary resident, asylee, person granted protection, or a person residing in the United States under a suspension of deportation. This definition does not include the immigrant investor; their spouse, sons or daughters; or any foreign national in non-immigrant status (such as an H-1B non-immigrant) or not authorised to work in the United States.

Full-time employmentmeans employment of a qualifying employee by the new commercial enterprise in a position requiring a minimum of 35 working hours a week. In the case of the regional center programme, full-time employment also includes employment of a qualifying employee in an indirectly created position requiring a minimum of 35 working hours a week.

A job-sharing arrangement where two or more qualifying employees share one full-time position counts as full-time employment provided the weekly hours requirement is met. This definition does not include a combination of part-time positions even where, combined, those positions meet the weekly hours requirement.

Jobs that are intermittent, temporary, seasonal or transient do not count as permanent full-time jobs. However, jobs expected to last at least 2 years are not usually considered intermittent, temporary, seasonal or transient.

The investment

Includes cash and all real, personal or mixed tangible assets owned and controlled by the immigrant investor. All capital is valued at fair market value in US dollars (USD)

The definition of capital does not include:

• Assets acquired, directly or indirectly, by unlawful means (such as criminal activity)
• Capital invested in exchange for a note, bond, convertible debt, obligation or any debt arrangement between the immigrant investor and the new commercial enterprise
• Capital invested with a guaranteed rate of return on the amount invested
• Capital invested under any arrangement between the immigrant investor and the new commercial enterprise giving the immigrant investor a contractual right to repayment, except where the new commercial enterprise has a buy-back option exercisable entirely at the new commercial enterprise’s discretion

Note:The immigrant investor must demonstrate that they are the lawful owner of the invested capital. Capital may include their promise to pay (a promissory note) in certain circumstances.

The minimum investment amount by date of application and location of investment:

Date of application	Minimum investment amount	Investment amount in a Targeted Employment Area (TEA)	Investment amount in a High Employment Area
Before 15/3/2022	$1,000,000 USD	$500,000 USD	$1,000,000 USD
On or after 15/3/2022	$1,050,000 USD	USD 800,000 (including infrastructure projects)	Not applicable

Future adjustments are tied to inflation, using the change in theConsumer Price Index for All Urban Consumers (CPI-U)from 15 March 2022 to the date of adjustment. These adjustments take place every five years, with the first adjustment taking effect for applications submitted on or after 1 January 2027.

A Targeted Employment Area (TEA)may be, at the time of investment:

• A rural area
• An area experiencing high unemployment (defined as at least 150% of the national average unemployment rate)

A detailed article onTargeted Employment Area (TEA).

A rural areais any area outside an area within a metropolitan statistical area (MSA) (as designated by the Office of Management and Budget) or within the outer boundary of any city or town with a population of 20,000 or more according to the most recent decennial US census.

A high unemployment areacomprises the census tract or contiguous census tracts in which the new commercial enterprise principally does business, which may include any or all of the directly adjacent census tracts, where the weighted average unemployment rate for the designated area based on the labour force employment measure for each tract reaches 150% of the national average unemployment rate.

A regional center investormay choose to invest in a new commercial enterprise engaged in an infrastructure project.

An infrastructure project is a capital investment project in a filed or approved business plan, administered by a governmental entity (such as a Federal, State or local agency or authority) which is the job-creating entity contracting with a regional center or new commercial enterprise to receive capital investment under the regional center programme from foreign investors or the new commercial enterprise in order to finance the maintenance, improvement or construction of a public works project.

A detailed article onThe risks of investing in an EB-5 project.

The immigration quota for the EB-5 visa

The EB-5 Reform and Integrity Act created set-aside EB-5 immigrant visa allocations for qualifying immigrant investors. In each fiscal year, a certain percentage of EB-5 immigrant visas is set aside for investors who qualify by investing in particular areas:

Investment area	EB-5 immigrant visa allocation each fiscal year
A rural area	20%
A high unemployment area	10%
Infrastructure projects	2%

Any of these set-aside visas that are not used are kept in the same set-aside category for one further fiscal year. After the second fiscal year, any immigrant visas remaining unused in these set-aside categories are transferred to the unreserved EB-5 immigrant visa numbers in the 3rd fiscal year.

Submitting an EB-5 visa application

1. Filing Form I-526 or Form I-526E:
   • FileForm I-526, Immigrant Petition by Standalone Investor, where investing directly rather than through a regional center.
   • FileForm I-526E, Immigrant Petition by Regional Center Investor, where investing through a regional center approved by USCIS.
   • Where an immigrant visa is immediately available, the investor may fileForm I-485, Application to Register Permanent Residence or Adjust Statustogether with Form I-526 or I-526E, while the petition is pending or after it has been approved.
2. After Form I-526 or I-526E is approved:
   • FileForm DS-260, Immigrant Visa and Alien Registration Application(the online application) with the US Department of State to apply for an EB-5 visa abroad in order to be admitted to the United States
   • Form I-485, Application to Register Permanent Residence or Adjust Statuswith USCIS (where the investor did not file Form I-485 before Form I-526 or I-526E was approved) to adjust status to conditional permanent resident in the United States. Once USCIS approves the investor’s I-485 application, or once the investor enters the United States on an EB-5 immigrant visa, the investor and dependent family members are granted conditional permanent residence for a period of two years.
3. Filing Form I-829:
   • FileForm I-829, Petition by Investor to Remove Conditions on Permanent Resident Statuswithin the 90 days immediately before the two-year anniversary of the adjustment of status or entry to the United States as a conditional permanent resident.
   • Where USCIS approves this petition, the conditions are removed from the investor’s lawful permanent resident status and from that of any dependants included.

Notable projects

Hotel and mixed-use projects financed with EB-5 investment include Hilton, Hyatt Hotels, Marriott’s and Starwood’s SLS Hotel & Casino. In 2016, Forbes cited Hudson Yards, Manhattan as a “prime example” of one of the “very successful projects” from EB-5 investment.

In southern California, EB-5 projects include Europa Village in Temecula, the Hilton Garden Inn in El Monte, and the JW Marriott hotel at L.A. Live in downtown Los Angeles.

One of the major infrastructure projects in the EB-5 programme is the recently completed I-95/Pennsylvania Turnpike interchange, completing the longest north-south route in the Interstate Highway System. Interstate 95, running from Maine to Florida, serves more than 110 million people and 10% of the total land area of the United States. Development began as part of the Federal-Aid Highway Act of 1956.

The administering agency

The Securities and Exchange Commission (SEC)

The US Securities and Exchange Commission (SEC) plays an important role in protecting investors taking part in the EB-5 programme – the US investment immigration programme.

Although USCIS administers the immigration aspect, the SEC is responsible for overseeing the financial aspects, treating the EB-5 as a form of security under the Securities Act 1933 and the Securities Exchange Act 1934.

The SEC’s main objectives are to protect investors, maintain fair markets and promote capital formation, through investigating and acting on fraud.

United States Citizenship and Immigration Services (USCIS)

United States Citizenship and Immigration Services (USCIS) sets the guidelines for EB-5 projects and monitors compliance with immigration rules. Under the EB-5 visa guidance, “the investor must place their capital at risk and a green card is not guaranteed”. USCIS also assesses approvals for regional centers.

Oversight and fraud cases

Oversight and fraud cases pose considerable challenges. According to reports from USCIS, between 2020 and 2025 more than 30 EB-5 projects in the United States were found to show signs of fraud, causing hundreds of millions of dollars in losses to investors.

Fraud cases usually involve inflating job numbers, using capital of unclear origin, or projects that are not viable but are advertised misleadingly.

In response, USCIS has strengthened oversight since 2022 with the EB-5 Reform and Integrity Act (RIA), requiring financial transparency and background checks on investors as well as regional centers. However, many experts consider that oversight remains inadequate, particularly for small individual projects. Vietnamese nationals should be cautious, choose a reputable regional center (the list is available from USCIS), check the project’s records, and take legal advice before investing.

Fraud not only results in loss of capital but also affects the prospect of settlement. Researching for yourself and working with official agencies is therefore the best protection, particularly against the volatile economic background of 2025.