How the program works.

Congress created EB-5 to offer a green card to foreign nationals who invest a required sum of their own money in a new enterprise that creates American jobs. Most do not fund a project directly; they invest through a regional center — a USCIS-designated entity that pools many investors' capital into a single, larger project. After years of lapses and last-minute extensions, the 2022 EB-5 Reform and Integrity Act reauthorized the regional-center program through September 30, 2027. It rebuilt much of its compliance architecture from the ground up.¹

The headline numbers are straightforward: a $1,050,000 minimum, or $800,000 if the money goes into a targeted employment area or an infrastructure project, and at least ten full-time jobs for each investor. The process behind those numbers is a marathon. An investor files a petition, waits — often for years — for approval and an available visa, receives conditional residence for two years, and must then prove two things to keep it: that the money remained genuinely at risk in the approved enterprise and that the promised jobs actually materialized. That two-part burden is worth holding onto, because it is the seam where most disputes eventually open.²

A. NCE, JCE, and the flow of capital

Investors put their money into a new commercial enterprise, the NCE, which in turn channels it to a job-creating entity, the JCE — usually the developer who builds the project and creates the jobs.³ The investor's contract is usually with the NCE, but the assets and the real risk sit a level down at the JCE — so recovery often means chasing value across that gap.

B. Loan model versus equity model

Funds invested with the NCE reach the JCE in one of two ways. In the loan model, the loan is made to the JCE, often secured by a mortgage or pledge with a fixed maturity — placing EB-5 investors as lenders with a defined exit and sometimes collateral. In the equity model, investors hold equity (commonly preferred), junior to all debt but typically senior to common and developer equity.⁴ The difference is everything when a deal goes wrong: in a default, a secured lender can foreclose, while an equity holder waits behind every creditor and often recovers nothing.

C. The capital stack, and where EB-5 sits

Most projects are financed in tiers, each with a different priority in a default: senior secured debt, subordinated debt, mezzanine debt, preferred equity, and common and developer equity. EB-5 capital usually sits on a mezzanine or preferred-equity rung — behind the senior bank lender. That single fact often determines whether a non-fraud recovery occurs. When a project fails and the senior lender forecloses, there may be nothing left by the time the waterfall reaches the EB-5 tier.

D. The tension immigration law builds in

Here is the paradox at the center: the very features an investor would most want for protection — a guaranteed return, a fixed redemption date, an ironclad promise of repayment — are precisely the features immigration law forbids. Under Matter of Izummi, capital is “at risk” only if it faces a genuine risk of loss and a real chance of gain; guarantees and redemption rights disqualify it outright.⁵ And immigration law has never actually required that the investor get the money back — only that the investment be sustained and the jobs created. The law protects the risk, not the reward.⁶

The security an EB-5 investor most wants — a guarantee of repayment — is precisely what immigration law prohibits. Recovery must be engineered within that constraint, not around it.