A new commercial enterprise, or NCE, is any for-profit entity formed for the ongoing conduct of lawful business. That is the entire definition, and it is far broader than most investors expect. A corporation qualifies. So does a limited partnership, an LLC, a business trust, a joint venture, a holding company together with its wholly owned subsidiaries, and even a sole proprietorship. Nonprofits fail the test, and so does a noncommercial activity such as owning a personal residence.
The text sits at 8 CFR 204.6, the regulation governing employment creation petitions. The heavier word in that phrase is commercial. Form is the easy part. Denials rarely turn on how the entity was incorporated, and they very often turn on whether it is genuinely conducting business rather than holding an asset and waiting for someone else to do the work.
What counts as commercial, and what does not
For profit is the first line. An entity organized to earn money by selling goods or services is commercial. A charitable foundation is not, however many people it employs. Neither is a municipal authority.
Lawful is the second line, and it catches people who never see it coming. Federal law controls here, so a cannabis operation fully licensed by a US state still fails, because the substance remains federally scheduled no matter what the state permits.
Ongoing conduct is the third. A shell holding title to land and doing nothing is not conducting business, and calling it an enterprise in the offering memorandum changes none of that. USCIS wants an entity that will actually operate, with a lease in place, a hiring plan carrying real dates and revenue projections built on assumptions a stranger can follow.
How new does the business have to be?
Newness is measured against 29 November 1990, not against last quarter. An entity established after that date and formed for the ongoing conduct of lawful business is new for EB-5 purposes, even when it has been trading profitably for twenty years before you arrive with your capital.
So a company founded in 1998 can be your NCE.
What matters far more than the date on the articles of organization is whether the 10 jobs you claim are new jobs attributable to your money. Since the EB-5 Reform and Integrity Act of 2022, that link carries the weight. An investor buying into a mature business with a flat headcount has nothing to show at the I-829 stage, whatever the formation date says, which is why The I-829 Dealbreaker: Mastering the EB-5 10-Job Creation Requirement is worth reading before you sign anything.
Buying an existing business for EB-5
Listings advertising an EB-5 business for sale are common and mostly unhelpful. Purchasing an operating company creates nothing by itself. Ownership changes hands while the staff stays and the customer list stays, so USCIS counts zero new positions and your petition has no job creation story at all.
Two routes exist. You can restructure or reorganize the business so that a genuinely new commercial enterprise results, meaning a real change in what the business does rather than a change of name over the same operations. Fresh decor does not count. Neither does a new marketing plan. Converting a restaurant into a nightclub does. Or you expand it, and the expansion produces the 10 new full time positions your petition needs.
A second test exists, and it applies only where the business already existed on or before 29 November 1990. For those, USCIS accepts restructuring, or an expansion lifting net worth or headcount by at least 40 percent so that the figure ends at 140 percent of where it started. Almost no investor is ever buying a company that old, and the 10 new jobs stay the real obstacle either way, which is why restaurants and small retail purchases marketed as turnkey EB-5 deals go wrong most often and most expensively.
Troubled businesses and the jobs you preserve
One narrow exception lets you count preserved jobs instead of created ones. A troubled business under the regulation has existed for at least two years and posted a net loss over the 12 or 24 month period before your priority date, with that loss equal to at least 20 percent of net worth before the loss.
Qualify, and you may count 10 jobs you kept rather than 10 you built, maintained at no less than the pre-investment level through the full two years of conditional residence, but miss the arithmetic on that 20 percent loss test and you have simply bought a failing company for nothing. Audited financials are the price of entry here. Unaudited management accounts will not survive a request for evidence.
NCE versus the job creating entity
Regional center deals split these into two companies. The NCE is the fund whose units you own. A job creating entity, usually a developer, does the building and the hiring. Your capital reaches the NCE, the NCE lends or contributes to the job creating entity, and the economist counts jobs at that second level rather than at the fund where your name appears.
Direct investors normally collapse both roles into one entity, which is simpler to explain and considerably less forgiving in practice, since a single missed hire shows up in your own payroll records rather than inside an economist's model where a cushion might absorb it.
Several investors can share a single NCE. Each still needs 10 jobs allocated to them alone with no job counted twice, and that arithmetic is exactly what fails when a fund oversubscribes or a project underdelivers. Pooled EB-5 Investments and Joint Ventures: NCE Structure and Job Splits covers how those allocations get drafted.
Business plans that survive an RFE
Most NCE arguments are won or lost in the business plan. USCIS applies the Matter of Ho standard, which asks for a comprehensive and credible document rather than a marketing deck with a hockey stick chart in it. Length is not the point.
A hiring table matters more than prose. Give each position a title and a wage. Give it a start quarter. State the hours that make it full time, which means 35 hours per week for EB-5 purposes, and then show the revenue that pays for it. Projections placing all 10 employees in month 22 of a 24 month plan invite an immediate request for evidence.
Build slack into the schedule.
Market analysis should name real competitors and cite real data. Anything copied from a template circulating among agents gets recognized, because adjudicators read hundreds of these documents a year and the recycled paragraphs stand out.
Where the money and the location rules bite
The enterprise has to receive $800,000 if it sits in a Targeted Employment Area and $1,050,000 if it does not, and those numbers hold until the first inflation adjustment on 1 January 2027, after which they are recalculated for inflation every five years. Location is assessed where the jobs are created, so a Manhattan office running a factory in a rural county is a very different analysis from the address on your letterhead. Check the census tract. EB-5 TEA Explained: Rural vs High Unemployment Areas and the $800K Rule shows how those boundaries get drawn and why they are redrawn more often than investors realize.
Capital also has to be at risk inside the NCE, which rules out guaranteed buybacks and redemption rights that function as a promise of return. EB-5 Capital At Risk: What It Means for Your $800,000 Investment explains why that phrase keeps appearing in denial letters.
Is EB-5 still valid in 2026?
Yes. The regional center program is authorized through 30 September 2027, and direct EB-5 investment in your own new commercial enterprise carries no sunset date at all. Petitions filed by 30 September 2026 are grandfathered for adjudication even if authorization lapses afterwards.
USCIS publishes its adjudication guidance in Policy Manual Volume 6, Part G on immigrant investors, alongside the program summary on the EB-5 Immigrant Investor Program page. Conditions come off your residence under 8 CFR 216.6, the rule for entrepreneurs removing conditions, where the NCE has to still exist and still be doing business two years later.
If the structure you are being offered cannot be described in one clear sentence, walk away. Then read EB-5 Visa Requirements Too High? E-2, EB-2 NIW and L-1 Alternatives, because a cheaper visa you actually qualify for beats an expensive one you do not.