The programme
Commercial enterprise
Also called for-profit activity, new commercial enterprise.
A commercial enterprise is any for-profit activity formed for the ongoing conduct of lawful business, in any entity form, publicly or privately owned, and not a noncommercial activity such as owning and operating a personal residence. For petitions filed on or after 15 March 2022 the term that governs is new commercial enterprise, which the statute defines more narrowly: a for-profit organization formed in the United States that receives, or is established to receive, EB-5 capital.
What it decides
Two definitions carry this term and they are not identical, which is why USCIS prints them side by side. The regulation, 8 CFR 204.6(e), defines commercial enterprise as any for-profit activity formed for the ongoing conduct of lawful business, including but not limited to a sole proprietorship, partnership (limited or general), holding company, joint venture, corporation, business trust, or other entity, publicly or privately owned. It covers a holding company and its wholly owned subsidiaries where each subsidiary runs a for-profit lawful business, and it excludes noncommercial activity such as owning and operating a personal residence. The same paragraph adds that "New means established after November 29, 1990." A business that existed on or before that date can still qualify if the investment restructures or reorganizes it so that a new commercial enterprise results (8 CFR 204.6(h)(2)), or expands it by at least 40 percent in net worth or in number of employees, to at least 140 percent of the pre-expansion figure (8 CFR 204.6(h)(3)). The statute, as amended by the EB-5 Reform and Integrity Act of 2022 and applicable to petitions filed on or after 15 March 2022, defines new commercial enterprise at 8 U.S.C. 1153(b)(5)(D)(vi) as any for-profit organization formed in the United States for the ongoing conduct of lawful business, including sole proprietorship, partnership (limited or general), holding company and its wholly owned subsidiaries, joint venture, corporation, business trust, limited liability company, or other entity, publicly or privately owned, that receives, or is established to receive, capital investment from investors. Three differences matter for anyone filing now. It requires formation in the United States, so a foreign entity cannot be the new commercial enterprise. It names the limited liability company, which the regulation's list does not, and which is the usual form in practice. And it fixes no date, so the 29 November 1990 line and the restructuring and expansion routes come from the regulation rather than from the statute. USCIS still states the 1990 date and both routes in the Policy Manual, footnoted to the regulation. This definition sets what the investor's capital goes into, not the limit of where it ends up. Under the regional center program the new commercial enterprise deploys capital to a job-creating entity, and 8 U.S.C. 1153(b)(5)(D)(v) defines that as any organization formed in the United States for the ongoing conduct of lawful business, with no for-profit requirement. For an infrastructure project the job-creating entity is a governmental entity, 8 U.S.C. 1153(b)(5)(D)(iv).
Where this is explained properly
Pages here that go into commercial enterprise rather than mentioning it.
Related terms
- Affiliated job-creating entityA job-creating entity in the regional center program that is controlled, managed or owned by any of the people involved with the regional center or the new commercial enterprise, those people being the ones who hold substantive authority, directly or indirectly, over the investors' money.
- Job-creating entityA job-creating entity, or JCE, is the United States business in a regional center EB-5 deal that receives the investment capital, either straight from the investors or through the new commercial enterprise, and is responsible for creating the ten full-time jobs each investor's petition must count.
- Targeted employment areaA targeted employment area, or TEA, is a rural area or an area the Secretary of Homeland Security has designated as a high unemployment area, and an EB-5 investment placed in one requires $800,000 of capital rather than $1,050,000. An investment in an infrastructure project reaches the same $800,000 by a separate route without being a TEA.
- Troubled businessA troubled business is a business in existence for at least two years whose net loss under generally accepted accounting principles, over the 12 or 24 months before the priority date on the investor's I-526 or I-526E, is at least 20 percent of its net worth before that loss.
Checked against primary sources on . Back to the glossary