Yes, an existing US business can carry an EB-5 petition, and the whole thing turns on job arithmetic. Your $800,000 has to produce ten new full-time positions counted above the headcount the company already had. Separately, the business has to count as a new commercial enterprise, and one way to get there is expansion: net worth or employee count climbing by at least 40 percent after the capital goes in. That threshold comes from 8 CFR 204.6(h)(3).
Read those as two tests, not two options. The regulation states in the same paragraph that qualifying by expansion does not excuse you from the ten job requirement. Sales material sometimes implies a 40 percent bump is enough on its own. It never is.
How an operating company becomes a "new commercial enterprise"
Federal regulation recognizes more than one route in. Wording matters here, because your petition will quote it straight back to an adjudicator who has read the same paragraph several thousand times. All three routes appear in the EB-5 employment creation regulation at 8 CFR 204.6.
- Fresh formation. You capitalize a newly organized entity that then operates the expanded business. Cleanest route, and the one most direct investors use.
- Purchase and reorganization. You buy a going concern and restructure it so a genuinely different enterprise results. Renaming a car wash and dropping it into a new LLC will not survive review.
- Expansion. Capital goes into the business you already run, and net worth or employment rises by 40 percent or more.
Owners of an operating company usually reach for the third door, then find the first one easier to document. Whichever door you use, the ten jobs still have to appear.
Baseline payroll is the number that decides your case
Pick the date your capital is made available to the enterprise. Count every qualifying full-time employee on the books that day. Everything after that date is what USCIS will credit, and nothing before it counts, however many people you already employ.
Full-time means at least 35 hours a week. Job sharing qualifies when two people genuinely split one position on a schedule, while stacking two unrelated 20 hour roles into a single claimed position fails the test even though the hours plainly add up to more than 35 a week. Independent contractors paid on Form 1099 are not employees for this purpose. Neither are you or your spouse, and your children do not count either.
Evidence that persuades runs through quarterly Form 941 filings and state unemployment insurance wage reports. I-9 records help. A bookkeeper's spreadsheet carries far less weight.
Direct jobs only, unless you sit inside a regional center
Expansion petitions collapse here more often than anywhere else. A standalone investor filing Form I-526 for a non regional center investment can count only direct W-2 employees of the new commercial enterprise or of a subsidiary it wholly owns. Economic models such as RIMS II and IMPLAN generate indirect and induced job numbers that carry no weight at all in a standalone case. None. Whatever the economist charged.
Regional center investors get the wider count, and the 2022 statute puts ceilings on it. Indirect jobs may satisfy no more than 90 percent of the ten job requirement, and construction activity lasting under two years may satisfy no more than 75 percent of it.
An operating company that wants indirect credit must affiliate with a designated regional center, whose sponsor files Form I-956F for the project. Small expansions rarely justify that cost.
The troubled business route, and why few investors take it
A troubled business lets you preserve jobs rather than create them. Qualification is narrow. The company must have existed for at least two years and posted a net loss during the 12 or 24 month period before the petition, and that loss has to equal at least 20 percent of the net worth it held before the loss arrived. Few companies clear the bar.
Clear it and you may keep the existing workforce at no less than the pre-investment level for two years, instead of hiring ten new people. Attractive on a slide. Proving a maintained headcount across 24 months of payroll to the Form I-829 adjudicator who removes conditions is harder than proving ten hires, because you are documenting the absence of layoffs rather than the presence of new faces.
What your money can be, and what it quietly cannot
$800,000 buys in if the business sits in a Targeted Employment Area. Outside one the figure is $1,050,000. Both amounts face their first inflation adjustment on 1 January 2027, so a filing made during 2026 locks today's number.
Cash already sitting in your company's operating account is not automatically EB-5 capital. USCIS traces capital to the individual investor, so retained earnings normally have to be distributed to you personally first, with the tax consequences that implies, and then contributed. Loans work when secured by assets you own personally and you are primarily liable. A loan secured by the enterprise's own assets is disqualified. No exceptions.
Capital has to stay invested for at least two years from the date it is made available to the business, a sustainment rule rewritten by the EB-5 Reform and Integrity Act of 2022. Paying yourself a consulting fee out of the invested funds is the fastest way to lose a petition.
Does your existing location qualify for the $800,000 tier?
TEA status attaches to the project site, never to your company. Two ways in. Rural means outside every metropolitan statistical area and outside any city or town of 20,000 people or more, while high unemployment means an area running at least 150 percent of the national jobless rate, a designation DHS now makes itself after the 2022 law stripped that authority from state agencies.
Census tract combinations are permitted and the arithmetic is unforgiving. Commission a professional TEA report before you sign a lease on the second location. Moving a planned facility three miles can change your price by $250,000.
You have to actually run something
EB-5 requires engagement in the management of the enterprise, through policy formation or day-to-day control. Owners expanding their own company clear this without effort. Reverse the fact pattern and the problem appears: if you intend to hand operations to a hired manager and hold a passive stake, a standalone petition is the wrong vehicle, and a regional center limited partnership fits the facts better.
Writing a plan an adjudicator will believe
Since Matter of Ho in 1998, the standard has been a comprehensive and credible business plan. Read that as a hiring document. USCIS wants a staffing table listing job titles and wage levels, with the month each position gets filled, alongside revenue projections that can plausibly support those wages.
Apply one test to your own draft. If the expansion could obviously be funded from existing cash flow, expect a Request for Evidence asking why $800,000 of outside capital was needed at all. The USCIS Policy Manual volume on immigrant investors lays out the evidentiary expectations in detail. Read it before your attorney drafts anything. Our I-526 document checklist covers the exhibit list itself.
Five mistakes that sink expansion petitions
- Counting hires the business would have made anyway.
- Backdating the baseline to a month when payroll dipped.
- Using multiplier-based job numbers in a standalone filing.
- Structuring the $800,000 as a shareholder loan the company repays on a schedule.
- Filing before the source of funds trail is finished, on the theory that an RFE can patch it later.
That last one costs the most time. Our page on direct EB-5 pitfalls goes deeper into operations, and the EB-5 myths page covers what agents tend to overstate when selling an expansion story.
Deadlines that shape an expansion plan
Standalone EB-5 carries no sunset date. Congress authorized the regional center program only through 30 September 2027, with grandfathering for petitions filed by 30 September 2026 should the program lapse, so an owner expanding their own company sits largely outside that calendar. Underrated advantage of the direct route.
Location still governs speed. Reserved visas run 20 percent rural and 10 percent high unemployment, with a further 2 percent for infrastructure, and they are allocated by where the project physically sits rather than by whether a regional center is involved. Expand into a qualifying rural county and your file joins a shorter queue. Budget from the current USCIS filing fee schedule, since those numbers moved sharply in recent years.