The Investor and the investor’s spouse and unmarried children aged under 21 are eligible to be included under the investor’s EB-5 visa petition. The age of a child is determined on the date that the Form I-526 visa petition is duly filed with USCIS.
An investment usually means an investment of cash, though it can also mean investment of other assets such as equipment, technology, inventory or contractual rights. The valuation of all assets that are not cash is usually complex and requires strict evidence. The investment must be an investment made in the present. Rarely will USCIS accept a promise to invest in the future as sufficient to prove an investment today. The investment of capital generally requires the investor to first own the asset, and then to transfer its ownership to the new commercial enterprise. In exchange for the contribution of capital, the investment must acquire an ownership interest in the capital of the new commercial enterprise.
All EB-5 investments must be made into a new commercial enterprise. To qualify as a new commercial enterprise, a company must be a for-profit enterprise formed in the U.S. established after November 29, 1990. As an exception, companies formed before November 29, 1990 can qualify as a new commercial enterprise if the investment project will restructure or reorganize the company in a very significant way, or, the company’s operations will be expanded through the investment so that there is a 40% increase in the company’s net worth or its number of employees. Any type of company can qualify as a new commercial enterprise.
For example, limited partnerships, limited liability companies or corporations all are eligible to qualify as a new commercial enterprise.
This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.