EB-5 New Commercial Enterprise Requirements

INA §203(b)(5)(D) describes the NCE as a for-profit U.S. organization formed for the ongoing conduct of lawful business and receiving or established to receive EB-5 investment capital.

INA section 203(b)(5) defines a new commercial enterprise as a for-profit organization formed in the United States for the ongoing conduct of lawful business that receives or is established to receive EB-5 investment capital. The definition covers several entity forms and focuses on the organization receiving the investor's qualifying capital. The NCE should therefore be identifiable in the petition, subscription documents, organizational records, and banking evidence. Calling an entity the NCE in marketing materials is not enough if the legal and financial documents show that investor capital is actually placed into a different entity.

Depending on the structure, the NCE may be a corporation, limited liability company, limited partnership, or another qualifying for-profit organization.

Entity form should be coordinated with management, securities, tax, and project considerations.

A qualifying NCE can take different lawful business forms, including a sole proprietorship, partnership, holding company with qualifying wholly owned subsidiaries, joint venture, corporation, business trust, or limited liability company. Entity choice can affect management rights, tax treatment, securities structure, and how capital moves through the project. The immigration filing should describe the actual organization rather than rely on a generic label. Formation records, governing documents, ownership records, tax identification, and bank accounts should all identify the same entity that receives or is established to receive the investor's EB-5 capital.

The investor's enterprise typically operates the business and directly employs the workers relied upon for EB-5 job creation.

In a standalone case, the NCE commonly operates the business that creates the required direct jobs. The investor places capital into that enterprise, participates in management as required, and relies on jobs created directly by the NCE or qualifying wholly owned subsidiaries. The business plan should connect the capital contribution to operations, hiring, and the projected staffing need. Payroll, tax records, Forms I-9, and employment records later help establish actual job creation. If several entities are involved, the filing should explain which entity employs the workers and why those jobs qualify under the standalone rules.

The NCE can pool EB-5 investments and deploy capital to a separate job-creating entity through an approved project structure.

The offering and project documents should make the roles of each entity clear.

Regional center structures often separate the NCE from the job creating entity. Investors subscribe into the NCE, and the NCE deploys pooled capital to the JCE through the financial arrangement described in Form I-956F and the offering documents. The JCE then conducts the project activity used to support the job creation methodology. This separation should be documented rather than assumed. The NCE governing agreement, financing documents, project records, and bank statements should show the legal relationship and capital flow so USCIS can understand how the investor's NCE interest connects to the underlying project.

Where a holding company and wholly owned subsidiaries are used, each relevant entity and the movement of capital should be documented carefully.

The statutory and regulatory framework permits certain holding company structures, but the entities and their activities should be documented carefully. A holding company and qualifying wholly owned subsidiaries can fit within the NCE framework when the applicable requirements are met. The filing should identify ownership percentages, each subsidiary's lawful business activity, where capital is deployed, and which entity creates the jobs. Organizational charts and intercompany records can help, but they should be supported by formation documents, bank records, contracts, and operating evidence. Complex structures should not obscure the entity that received investor capital or employed qualifying workers.

• Formation documents
• Operating or partnership agreement
• Federal tax identification
• Ownership records
• Subscription agreement
• Bank records
• Business licenses
• Project agreements

NCE evidence should establish legal existence, ownership, receipt of capital, management structure, and the enterprise's role in the EB-5 transaction. Useful records can include formation documents, the operating or partnership agreement, federal tax identification, ownership ledgers, subscription agreements, investor capital accounts, bank statements, business licenses, project agreements, and organizational charts. In regional center cases, Form I-956F materials should identify the NCE consistently. In standalone cases, operating and job records are especially important. The record should make clear where the investor placed capital, what rights were received, and how the enterprise participates in job creation.