EB-5 Engagement in Management Requirement

8 C.F.R. §204.6(j)(5) requires evidence that the investor is or will be engaged in management through day-to-day managerial control or policy formulation.

8 CFR 204.6(j)(5) requires evidence that the investor is or will be engaged in management of the new commercial enterprise through day to day managerial control or policy formulation. The regulation permits more than one way to satisfy that requirement, so the investor does not necessarily need to work full time in daily operations. The petition should identify the legal role actually held and the rights or responsibilities attached to it. A title alone is weaker than governing documents and a position description showing how the investor participates in management or policy decisions for the enterprise.

A standalone investor often manages the business directly, makes personnel decisions, controls budgets, or performs other management functions.

The claimed role should match the business and organizational evidence.

A standalone investor often has a direct operational role because the investor owns or helps operate the business that will create the jobs. Evidence may show authority over budgets, hiring, contracts, vendors, business strategy, financing, or other management functions. The role should be plausible in light of the size and nature of the enterprise and should match the business plan, organizational chart, governing documents, and position description. If managers will handle daily operations, the investor can still qualify through genuine policy authority, but the petition should identify those rights rather than relying only on ownership percentage.

The regulation recognizes qualifying limited partnership rights under the applicable partnership framework.

Regional center offerings commonly structure management rights through policy-making provisions rather than daily operations.

A limited partner can satisfy the management requirement when the governing documents provide qualifying policy rights. Current 8 CFR 204.6(j)(5) states that an equity holder is considered sufficiently engaged in policy making when the organizational documents provide rights, powers, and duties normally granted to equity holders of that entity type in the jurisdiction of organization. Regional center offerings therefore often structure investor participation through voting, consent, removal, amendment, or other policy rights. The partnership agreement should be reviewed to confirm that the stated rights actually exist and are not contradicted by other offering documents.

Voting rights, consent rights, member decisions, and policy authority should be identified rather than assuming that ownership alone establishes management participation.

An LLC investor should likewise rely on the operating agreement and applicable organizational rights to establish management or policy participation. Member voting rights, consent rights, authority over amendments, admission of members, major transactions, manager removal, dissolution, or similar matters may be relevant depending on the structure. The petition should identify the rights actually granted rather than assume that membership alone proves compliance. If the LLC is manager managed, the agreement should still show what policy powers remain with the investor members. The immigration description should match the agreement instead of overstating the investor's operational control.

The investor need not necessarily work full time in the business, but the immigration structure should provide qualifying management or policy rights.

Economic passivity and the immigration management requirement are not identical concepts. A regional center investor may have no role in construction or daily project operations yet still satisfy EB-5 management through qualifying policy rights in the NCE. Conversely, an investment that gives the investor only an economic return with no meaningful management or policy role can create an eligibility issue. The analysis should focus on the legal rights and duties the investor receives under the governing documents. Offering summaries, subscription materials, and investor questionnaires should describe those rights consistently so the record does not characterize the same investment as both completely passive and management qualifying.

• Operating agreement
• Limited partnership agreement
• Voting provisions
• Consent rights
• Management agreement
• Organizational chart
• Investor position description

Management evidence should be tailored to the entity type and the role claimed. Useful records can include the operating agreement, limited partnership agreement, bylaws, shareholder agreement, voting provisions, consent rights, board records, organizational chart, investor position description, and evidence of actual managerial activity where relevant. The filing should identify the specific provisions that establish day to day control or policy formulation rather than submitting a long agreement without explanation. A short chart cross referencing each claimed management right to the governing document can make the showing easier to verify and reduce ambiguity about the investor's legal role.