Money and structure

Matter of Soffici

Also called Soffici, In re Soffici.

Matter of Soffici is the 1998 EB-5 precedent decision, 22 I&N Dec. 158, holding that an investor who lends money to his own new commercial enterprise has not invested capital, that the enterprise's own secured borrowing is not his capital either, and that buying a going concern and changing the decor is not the restructuring the regulation requires.

What it decides

Decided by the Associate Commissioner, Examinations on 25 June 1998 and designated a precedent five days later. The petitioner's company had bought a Howard Johnson motor lodge in Stuart, Florida and funded it with borrowing rather than equity. Five holdings follow: lending money to your own enterprise is not a contribution of capital; loans the company takes against its own assets are not the investor's capital, and 8 CFR 204.6(e) forbids them; a personal guarantee does not turn company debt into the investor's own; the source of funds must be documented as the investor's and lawfully obtained; and an investor who buys a pre-existing business must prove the pre-acquisition headcount and ten full-time positions on top of it, unless the business qualifies as a troubled business. At page 166 the decision adds that a few cosmetic changes to the decor and a new marketing strategy are not restructuring, nor is a simple change in ownership. The RIA has since written the capital holding into statute at 8 U.S.C. 1153(b)(5)(D)(ii)(III)(bb), and USCIS today cites Soffici only for the restructuring point, and only where the enterprise was established on or before 29 November 1990.

Governed by Matter of Soffici, 22 I&N Dec. 158 (Assoc. Comm. 1998), Interim Decision 3359, headnotes 1 to 5 and pages 165 to 166, read in full from the EOIR PDF; 8 CFR 204.6(e) and 8 CFR 204.6(h)(2), both quoted inside the decision; USCIS Policy Manual, Volume 6, Part G, Chapter 2, Immigrant Petition Eligibility Requirements, current as of 5 August 2026, which is the only chapter of Part G that cites the decision and does so at footnote 92, for the restructuring holding and under the heading Enterprise Established on or before November 29, 1990; 8 U.S.C. 1153(b)(5)(D)(ii)(III)(bb) for the codified capital rule. The Policy Manual is good for how USCIS uses the case today but says nothing about the source of funds or pre-acquisition employment holdings, which come from the decision itself.

Related terms

New commercial enterpriseA new commercial enterprise, usually shortened to NCE, is the for-profit entity formed in the United States that receives the EB-5 investor's capital and gives the investor an equity stake in return, and it is the enterprise the petition is built around.
CapitalCapital 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.
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.
Matter of IzummiMatter of Izummi is the 1998 EB-5 precedent decision, thirteen holdings long, that treats an agreement giving the investor a right to be repaid as a debt arrangement barred by 8 CFR 204.6(e), so the money was never a contribution of capital and was never at risk.
Matter of HoMatter of Ho is the 1998 EB-5 precedent decision that set the minimum contents of the comprehensive business plan a petition must carry when the ten jobs have not been created yet, and it is the decision behind the phrase a Matter of Ho compliant business plan, which USCIS itself uses to separate an actual project from a hypothetical one.

Checked against primary sources on 10 August 2026. Back to the glossary