Can a new commercial enterprise support more than one EB-5 investor applicant?

The EB-5 investor visa is available to applicants who invest the required investment amount of $1,050,000 (or $800,000 if the business is located in a rural area or an area of high unemployment) into a for-profit business, called a new commercial enterprise or NCE. The investment must lead to the creation of at least ten jobs for US workers.

The EB-5 investor has two options to pursue an EB-5 green card: the direct investment program and the regional center program.

The direct investment program requires that the EB-5 investor invest the required capital into the business that will directly employ the individuals who fill the ten jobs created by the investment. In the direct investment context, the EB-5 applicant has usually either started the business, or has purchased then invested in it. An example of a direct investment EB-5 business is a restaurant: the EB-5 investor could start or purchase the restaurant and invest the required amount of capital into it in order to create ten US jobs. The restaurant would then directly employ the workers who fill the ten newly-created positions – for example, as servers, cooks, and cleaners. The EB-5 investor will usually have an active role leading and managing the business in the direct investment context.

In contrast to the direct investment option, the regional center program allows the EB-5 investor to pool their funds with those of other EB-5 investors. In the regional center context, the new commercial enterprise is usually a large project, such as a large resort that could cost tens of millions of dollars and attract dozens of EB-5 investors. In the regional center context, the EB-5 investor will usually not have an active role in the project.

The project must create enough jobs so that, on average, ten jobs are created for each EB-5 investor who invests in the project. One of the benefits of the regional center program is that the government will consider both direct and indirect jobs that result from the investment. Direct jobs are those where there is an employer-employee relationship between the new commercial enterprise and the employee (for example, a restaurant employing a server, or a resort employing a manager). An indirect job is a job that was created as a result of the new commercial enterprise, but that is not directly employed by it (for example, a cleaner who was hired by a cleaning company contracted by the resort, if the resort is the new commercial enterprise). Indirect jobs may be counted toward the job creation requirement in the regional center context, but not in the direct investment context.

Before March 15, 2022, the answer to this question was yes. For example, before March 15, 2022, two EB-5 investors could start a single restaurant and each invest the required amount into the restaurant. If the restaurant then created at least twenty jobs for US workers (ten jobs per EB-5 applicant), the two EB-5 investors would be eligible to receive an EB-5 green card, assuming they satisfied all other requirements.

On March 15, 2022, President Biden signed the EB-5 Reform and Integrity Act into law. That new law now requires that any EB-5 enterprise that has more than one EB-5 investor applicant must apply under the regional center program. The effect of this is that a business under the direct investment program can only support one EB-5 investor. Note that a direct investment business can have other investors in addition to the EB-5 investor, so long as the other investors are not also applying for an EB-5 green card. However, if more than one EB-5 investor is applying based on a single new commercial enterprise, the EB-5 applicants must apply through the regional center program.

The EB-5 Reform and Integrity Act also introduced new and strict requirements on regional centers, so the additional burden of registering a regional center and maintaining that registration can be significant. Unfortunately, many investors who would have been able to apply under the direct investment program before March 2022 will now need to navigate these requirements if they want to apply with one or more fellow EB-5 investors.