Money and structure

Capital

Also called qualifying capital, investment capital.

Capital is the cash and tangible assets an EB-5 investor contributes to the new commercial enterprise. Two texts define it: the statute, which governs petitions filed on or after 15 March 2022, and the older regulation, whose conditions on debt USCIS still applies alongside the statute.

What it decides

8 U.S.C. 1153(b)(5)(D)(ii) defines capital as cash and all real, personal or mixed tangible assets owned and controlled by the investor, or held in trust for the investor's benefit and to which the investor has unrestricted access. It must be valued at fair market value in US dollars, in accordance with Generally Accepted Accounting Principles or other standard accounting practice adopted by the Securities and Exchange Commission, at the time it is invested. Capital does not include assets acquired directly or indirectly by unlawful means, including any cash proceeds of debt secured by such assets; capital invested in exchange for a note, bond, convertible debt, obligation or any other debt arrangement between the investor and the enterprise; capital carrying a guaranteed rate of return; or capital subject to a contractual right to repayment, such as a mandatory redemption or a put option, even if that right is contingent on the enterprise doing well. The repayment exclusion has one carve out at clause (IV): capital still counts where the buy back option may be exercised solely at the discretion of the enterprise and results in the investor withdrawing the petition unless the sustainment period and the other requirements of the paragraph have been met. 8 CFR 204.6(e) defines capital as cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets the investor owns, provided the investor is personally and primarily liable and no asset of the new commercial enterprise secures any of that debt. USCIS still applies those conditions, to promissory notes and to invested debt. Since Zhang v. USCIS, USCIS no longer treats the investment of loan proceeds as an investment of indebtedness, applying that from 30 November 2018, the date of the district court decision, so the collateral test reaches only the case where the debt itself is what is contributed. Under 8 CFR 204.6(j)(2) the capital must in addition be placed at risk for the purpose of generating a return.

Governed by 8 U.S.C. 1153(b)(5)(D)(ii) (https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1153&num=0&edition=prelim); 8 CFR 204.6(e) and 204.6(j)(2) (https://www.govinfo.gov/content/pkg/CFR-2019-title8-vol1/xml/CFR-2019-title8-vol1-sec204-6.xml, the text in effect before the 2019 Modernization Rule, which USCIS applies after that rule was vacated in Behring Regional Center LLC v. Wolf, 544 F. Supp. 3d 937 (N.D. Cal. 2021); the currently codified CFR text still prints the vacated rule, including $1,800,000 and $900,000 in paragraph (f), so do not quote the codified edition); Zhang v. USCIS, 978 F.3d 1314 (D.C. Cir. 2020), applied by USCIS from 30 November 2018 per USCIS Policy Manual, Volume 6, Part G, Chapter 2 (https://www.uscis.gov/policy-manual/volume-6-part-g-chapter-2); effective date of the statutory definition from Pub. L. 117-103, div. BB, sections 102(a)(4) and 102(e), 15 March 2022, 136 Stat. 1075.

Where this is explained properly

Pages here that go into capital rather than mentioning it.

Related terms

Capital at riskThe rule that the investor's required capital must be genuinely exposed to loss, with a real chance of gain, and not shielded by a guaranteed return or by any contractual right to repayment.
Sustainment periodThe period an EB-5 investor's capital must stay invested. For a petition filed on or after 15 March 2022 it is two years, and USCIS counts it from the date the capital was contributed to the new commercial enterprise and placed at risk, not from admission as a conditional resident. For a petition filed before that date it is instead the two years of conditional permanent residence.
Inflation adjustmentThe automatic adjustment of the EB-5 minimum investment amounts to inflation, added to the statute by the RIA in 2022, which runs for the first time on 1 January 2027 and every five years after.

Checked against primary sources on 6 August 2026. Back to the glossary