Engaging in a New Commercial Enterprise: EB-5 Visa Requirement

Establishing an Enterprise as “New” & “Commercial”

One of the requirements to qualify for the EB-5 visa is that the immigrant investor must invest in a new commercial enterprise. These two criteria must be established:

• The enterprise must qualify as being commercial. It must be a for-profit entity created for the purpose of conducting ongoing lawful business. This also includes subsidiaries so long as they are also for-profit.
• The enterprise must be considered new. It must have been formed after November 29, 1990. However, there are two exceptions to this rule. A commercial enterprise may be formed before that date if the investor either restructures or expands it.

A business will be deemed to have become a new commercial enterprise if it can be established that the investor has reorganized or restructured an existing business. The statute and regulations offer little guidance as to the level of restructuring or organization required in order to establish a new commercial enterprise. Yet, case law does hold that it is not enough to merely alter the business’ legal form.

A new commercial enterprise will also be deemed new if it can be shown that the investor has expanded an existing business. The expansion must have resulted in an increase in the business' net worth of at least 40%, or resulted in a 40% increase in its number of employees.

“Engaging” in a New Commercial Enterprise

In order to qualify for the EB-5 visa, the investor must serve more than just a mere passive role in the new commercial enterprise. The investor is required by regulations to actually be involved in the enterprise's management. This means the investor must have involvement in the daily managerial control of the business or must formulate policy that manages the business. According to the regulations, this requirement may be satisfied if the investor is a corporate officer, board member, or limited partner.

Choose the Right Immigration Lawyer

It can be daunting to try and decipher all of the immigration regulations alone. When one small phrase like "engaging in a new commercial enterprise" contains so much information, it is important for a potential immigrant investor to speak with someone who knows and understands the laws and regulations. The Columbus immigration attorneys at The Law Firm of Shihab & Associates are experienced in all aspects of immigration law and would be happy to sit down with you and explain the entire process along with all of your rights and options.

Whether you are an alien entrepreneur, an existing business, or the family member of a foreign national, please feel free to contact us at (800) 625-3404 and put us to work for you on any of your immigration needs.