A requirement of the EB-5 visa program is for the foreign investor to invest and engage in a ‘New Commercial Enterprise’.
There are no restrictions on the type of business as long as it is a new business enterprise or the investment is made to into a failing business to save jobs, but in both cases the investment must create or save at least ten (10) jobs.
The easiest way to satisfy the requirement is to create a new commercial enterprise at the time of investment or to invest in a new commercial enterprise.
Part of the investment requirement is that the enterprise be commercial. The USCIS defines commercial enterprise as any for-profit activity formed for the ongoing conduct of lawful business.
The U.S. Citizenship and Immigration Services (USCIS) provides a list of business entities that qualify including a sole proprietorship, partnership (limited or general), holding company, joint venture, corporation, and business trust or other entity, which may be publicly or privately owned thus leaving the investor open to invest in any type of legal business entity, other than a nonprofit organization.
Another requirement of the EB-5 visa program is that the foreign investor must be engaged in the business. To satisfy this requirement the investor must manage the enterprise, whether through daily supervision and decision-making, or through policy formation as a corporate officer or board member. This requirement is waived if the investor goes through a Regional Center.
By investing in and engaging in a new commercial enterprise, the foreign investor will have met one of the requirements to qualify for the EB-5 visa program.
NOTE: The EB-5 investor may also restructure an already existing commercial enterprise but it is important to realize that a restructuring or reorganization of the commercial enterprise is needed and that just purchasing and managing a business is not sufficient.