The EB-5 Immigrant Investor Program (EB-5 Program) is a federal employment-based immigration program that allows eligible foreign nationals to obtain lawful permanent residency in the United States by making a qualifying investment in a U.S. business that creates American jobs. The EB-5 Program grants conditional permanent resident status to investors who: make a minimum capital investment in a new commercial enterprise (NCE) of $1,050,000, or $800,000 if investing in a Targeted Employment Area (TEA) or an infrastructure project; and demonstrate that the investment results in the creation of at least 10 full-time jobs for U.S. workers within the required timeframe. Jobs must be permanent, full-time (at least 35 hours per week), and generally must be created within two years after the investor has obtained conditional permanent residency. At the end of the two-year conditional residency period, investors must prove that the required investment has been sustained and the job creation requirement has been met.

The EB-5 Program permits investment in any lawful, for-profit commercial enterprise that meets the statutory job creation requirements. Projects can span a wide range of industries, including real estate development (such as hotels, multifamily housing, and mixed-use developments), infrastructure projects (including public-private partnerships and transportation hubs), manufacturing and industrial ventures, renewable energy and sustainability initiatives, technology and innovation-based enterprises, food service, and healthcare and senior living facilities. Regardless of the industry, a qualifying EB-5 investment must be carefully structured to demonstrate the creation of at least 10 qualifying U.S. jobs per investor in accordance with program requirements.

Although USCIS has not provided an exhaustive definition, a “material change” generally refers to any significant alteration that may affect investor eligibility or a project’s compliance with EB-5 requirements. Examples may include changes to the job creation methodology or the projected number of jobs, modifications to the capital structure that alter the flow of EB-5 funds, relocating the project to a new geographic area, or making substantial revisions to the scope or content of the business plan. If such a change occurs after investors have filed their I-526E petitions, USCIS may require the affected investors to file new petitions to reflect the updated project details.

The required investment sustainment period for EB-5 investors depends on the timing of their petition filing and the applicable program rules. For pre-RIA investors—those who filed Form I- 526 prior to March 15, 2022—the investment must be sustained through the end of the investor’s two-year CPR period. This requirement is based on USCIS policy guidance in effect prior to the enactment of the RIA. For post-RIA investors—those who filed Form I-526E on or after March 15, 2022—the investment must be sustained for a minimum of two years after the investor’s capital has been deployed and placed at risk in the JCE, regardless of when conditional residency begins. EB-5 immigration rules do not prohibit investment terms that would require or allow the NCE to hold and use the capital for longer than EB-5 rules require. Because investment timelines and exit strategies may vary from project to project, investors should carefully review the offering documents to understand the terms of the investment and how they align with applicable USCIS sustainment requirements.