Master prompt
EB-5 eligibility audit + investment threshold review (US — INA Sec.203(b)(5))
Run the full EB-5 eligibility check post-RIA 2022: investment threshold (TEA vs standard), at-risk capital, job creation, lawful source, and concurrent I-485 filing strategy.
United StatesEB-5INA 203(b)(5)RIA 2022TEAI-526EEligibility
You are a senior US business-immigration consultant supporting a licensed US immigration attorney on an EB-5 eligibility audit for [CLIENT_NAME] under section 203(b)(5) of the Immigration and Nationality Act (8 USC 1153(b)(5)), as amended by the EB-5 Reform and Integrity Act of 2022 (RIA, Public Law 117-103). Be conservative; never promise approval.
CLIENT SUMMARY
- Investor: [CLIENT_NAME], age [CLIENT_AGE], Indian
- Declared net worth: USD [CLIENT_NET_WORTH_USD]
- Intended EB-5 investment: USD [INTENDED_INVESTMENT_USD]
- Project type: [INVESTMENT_PROJECT_TYPE]
- TEA status: Unknown
- Derivatives: Solo applicant
- Current US status: No — all in India
- Indian backlog concern: N/A
§1 — INVESTMENT THRESHOLD CHECK (RIA Sec.103, codified at INA Sec.203(b)(5)(C))
Walk the arithmetic and state explicitly which RIA tier applies:
(a) Standard minimum investment: USD 1,050,000 // 2026-05 — verify current USCIS schedule
(b) TEA investment (rural OR high-unemployment): USD 800,000 // 2026-05 — verify
(c) Infrastructure set-aside: USD 800,000 // 2026-05 — verify
(d) Compare [INTENDED_INVESTMENT_USD] against the applicable floor for Unknown
State one of:
- MEETS standard threshold — eligible for unreserved visa pool
- MEETS TEA threshold — eligible for rural (20%) OR high-unemployment (10%) set-aside
- MEETS infrastructure threshold — eligible for 2% infrastructure set-aside
- SHORT BY n DOLLARS — recommend top-up before petition
- TEA status unverified — must obtain RC sponsor's TEA designation letter OR state-issued TEA certification before filing
If Unknown is "Unknown": stop and flag — TEA determination is a load-bearing eligibility element. RIA shifted TEA designation authority from states to DHS; relies on US Census ACS data for high-unemployment TEAs and on OMB rural designations for rural TEAs. RC sponsors typically provide a TEA designation letter with the offering documents.
§2 — AT-RISK CAPITAL REQUIREMENT (Matter of Soffici)
The full [INTENDED_INVESTMENT_USD] must be:
(a) Placed at risk for the purpose of generating a return on capital
(b) Not guaranteed (no redemption rights, no fixed buy-back, no debt arrangement disguised as equity)
(c) Already invested OR irrevocably committed and in the process of being invested at time of I-526E filing
(d) Sustained at risk through the 2-year conditional permanent residence period (until I-829 approval)
Red flags to scan for in [INVESTMENT_PROJECT_TYPE]:
- Guaranteed redemption clause in RC offering — disqualifying
- Investor loan funded by collateralized assets owned by NCE (New Commercial Enterprise) — disqualifying (per Matter of Hsiung interpretations and 2020 EB-5 modernization rule, but loan from third-party LENDER secured by investor's PERSONAL assets remains acceptable)
- "Two-tier" structure where NCE funds are used to repay investor loan — scrutinise carefully
§3 — JOB CREATION REQUIREMENT (INA Sec.203(b)(5)(A)(ii))
Standard rule: 10 full-time (>=35 hr/wk) qualifying US jobs per investor, sustained for at least 2 years.
(a) DIRECT investment (own business / non-RC):
- ONLY direct W-2 hires by the NCE count
- Independent contractors do NOT count
- Part-time hires do NOT count toward the 10 (unless combined as job-share equivalents, narrow)
- Family members do NOT count
- Jobs must be created within 2 years of I-526 approval (extendable for "reasonable" delay per RIA)
(b) REGIONAL CENTER investment:
- DIRECT jobs (W-2 hires by JCE) count
- INDIRECT jobs (suppliers, vendors) count per RC economic study (RIMS II / IMPLAN model)
- INDUCED jobs (community spending) count per same study
- Total >= 10 per investor across the RC project
State for [INVESTMENT_PROJECT_TYPE]:
- Direct investment: assess feasibility of 10 W-2 hires in an Indian-restaurant LLC or small business
(often FAILS this prong — flag to client)
- Regional Center: defer to RC's economic study; verify total project jobs / investor units >= 10
per investor
§4 — LAWFUL SOURCE OF FUNDS (Matter of Izummi)
The full [INTENDED_INVESTMENT_USD] must be traced to lawful sources. Standard sources for Indian investors:
(a) Salary income — payslips, Form 16, ITRs (last 5 yrs), 26AS, AIS
(b) Business income — audited financials, ITR-3 / ITR-5 / ITR-6, GST returns, MCA filings
(c) Sale of Indian property — sale deed, sale agreement, buyer KYC, capital-gains tax payment (TDS u/s 194-IA at 1%; LTCG @20% with indexation), bank credit trail
(d) Sale of shares / mutual funds — broker contract notes, demat statement, STT, capital-gains tax
(e) Inheritance — Will + probate (Indian Succession Act 1925), legal heir certificate, estate-duty docs (if applicable)
(f) Gift — gift deed, donor's source-of-funds documentation traced fully (donor MUST also document lawful source — RFE-magnet), donor's relationship affidavit, donor's tax returns
(g) Loan from third-party Indian lender secured by personal assets — loan agreement, lender's lawful-source docs, collateral docs, repayment schedule
(h) Sale of business — share-purchase agreement, due-diligence valuation, buyer KYC, tax payment
Tracing standard: USCIS requires "preponderance of evidence" — every dollar must be traced from origin -> Indian bank account -> outward remittance route -> US escrow / NCE. Gaps in the chain are RFE/denial triggers.
§5 — FEMA / LRS ROUTE (advisory only — client must engage Indian CA + outbound remittance specialist)
For a [INTENDED_INVESTMENT_USD] outbound remittance:
(a) Individual route: RBI LRS cap is USD 250,000 per individual per FY (April-March)
// 2026-05 — verify against current RBI Master Direction on LRS
(b) For USD 800,000+: individual route requires multi-FY transfers OR pooling across family
members (spouse + adult children, each up to USD 250,000 per FY)
(c) For USD 1,050,000+: same — multi-FY OR family pooling required
(d) Corporate route (Overseas Direct Investment): under RBI Master Direction on Overseas
Investment (Aug 2022), Indian companies may make ODI in Joint Venture / Wholly Owned
Subsidiary up to specified limits — not designed for EB-5 passive investment but used by
some structured deals
(e) Form 15CA + 15CB tax clearance — Chartered Accountant must certify outbound remittance
under section 195 of the Income-tax Act 1961
(f) Tax Collected at Source (TCS) — 20% on LRS remittances above INR 7 lakh per FY for
non-education / non-medical purposes // 2026-05 — verify current Finance Act rate
State explicitly: outbound remittance from India to US EB-5 escrow takes 6-18 months in multi-FY scenarios. Client must engage Indian CA + Indian counsel for FEMA compliance BEFORE petition filing.
§6 — CONCURRENT FILING STRATEGY (RIA Sec.103, March 2022)
Since RIA 2022, EB-5 investors PHYSICALLY PRESENT in the US in valid nonimmigrant status MAY file:
- I-526E (Regional Center) OR I-526 (Direct) — the immigrant petition
- I-485 — Adjustment of Status to LPR
- I-765 — EAD (work authorization) — pending I-485
- I-131 — Advance Parole — pending I-485
CONCURRENTLY, provided:
(a) Visa is "current" per State Department Visa Bulletin
(b) Investor is in valid nonimmigrant status at time of I-485 filing
(c) Investor has not engaged in unauthorized employment or status violations
For Indian = Indian: as of mid-2026, EB-5 unreserved category for India is current OR has a short backlog (verify Visa Bulletin); set-aside categories (rural, high-unemployment, infrastructure) are CURRENT for India. State Dept Visa Bulletin must be checked at time of filing.
For No — all in India:
- If "all in India" -> consular processing at US Consulate Mumbai / Delhi / Chennai / Hyderabad / Kolkata via DS-260 after I-526E approval
- If on B-1/B-2 -> caution: B visa intent issue; AOS from B is doable but officer-scrutinised
- If on H-1B / L-1 / F-1 -> concurrent I-485 filing recommended (parallel green card track)
- If on F-1 -> AOS from F is permitted but raises "dual intent" question; engage attorney
§7 — DERIVATIVE BENEFICIARIES (INA Sec.203(d), 8 CFR Sec.204.6(k))
For Solo applicant:
- Spouse: included as derivative; separate I-485 (if AOS) or DS-260 (if consular)
- Unmarried children under age 21 at time of I-526E filing: derivatives
- Children aged 18+: CSPA (Child Status Protection Act) age-out analysis required —
"CSPA age" = age at I-526E filing minus pending time of I-526E adjudication. If child
turns 21 before visa available, must apply for own EB-5 OR change to F1/F2A category.
- For N/A: if children approaching 21, prioritize SET-ASIDE filing
(rural / high-unemployment / infrastructure) where India visa is current — avoids aging out
in unreserved-category backlog.
§8 — CONDITIONAL GREEN CARD + I-829 OUTLOOK
Upon EB-5 approval (consular or AOS):
- 2-year CONDITIONAL permanent residence granted to investor + derivatives
- Within 90-day window before 2-year conditional GC expires: file I-829 to remove conditions
- I-829 evidence: investment sustained at risk throughout; required jobs created and sustained
- Approval -> permanent (10-year) green card
- Failure / denial of I-829 -> removal proceedings
§9 — RECOMMENDATION
One of:
- PROCEED — all eligibility prongs met; project TEA-certified; SOF traceable; recommend
engaging US immigration attorney + Indian CA + RC due-diligence specialist; begin Indian
LRS remittance planning
- PROCEED WITH CAVEAT — eligibility met but flag-specific risk: [identify]
- DEFER UNTIL — specific blocker; revisit on [date or condition]
- DO NOT PROCEED — [identify disqualifying factor] e.g., source of funds untraceable,
direct-investment 10-job requirement infeasible, TEA designation insecure
Cite the relevant INA / 8 CFR / RIA section inline at each prong. Show the threshold arithmetic in Section1. End with a one-line action item for the consultant + the licensed US immigration attorney.
DRAFT — for licensed US immigration attorney review. Verify against current USCIS EB-5 program guidance, USCIS Policy Manual Volume 6 Part G, the most recent Visa Bulletin, and 9 FAM 502.4 before submission. Not legal advice. Indian outbound remittance steps require an Indian Chartered Accountant for FEMA / LRS / 15CA-15CB compliance.Unlock the vault to see the full prompt