Any for-profit lawful business entity is considered a commercial enterprise. There are four types of sub avenues classified as new business enterprises. 

Creating a new business:
The EB-5 program defines a ‘new’ enterprise as one that was “established after November 29, 1990.” Immigrant investors can invest the required amount of capital in a commercial enterprise that was established after November 29, 1990, provided that other criteria are met.  Based on a 1998 precedent, an EB-5 investor was required to be present at the creation of an enterprise. However, this was problematic for businesses created under a partnership model. A partnership is typically formed first among the main partners and then other limited partners are sought afterwards. Because of the 1998 precedent, such limited partners could not qualify for an EB-5. In 2002, Congress overruled this decision, only requiring a petitioner to show that he or she has invested the required amount.

Buying an existing business that is restructured or reorganized:
An EB-5 investor can restructure an existing business. USCIS does not consider merely changing the legal structure of an enterprise sufficient.  In Matter of Soffici, a 1998 decision, the USCIS Administrative Appeals Office ruled that an investor who had purchased a Howard Johnson hotel and continued to run it as a Howard Johnson hotel did not meet the requirements of adequate restructuring or reorganization of an existing business. The AAO stated that “a few cosmetic changes to the décor and a new marketing strategy for success do not constitute the kind of restructuring contemplated by the regulations, nor does a simple change of ownership.” USCIS gives the examples of a restaurant that is converted into a nightclub or a plan that adds substantial crop production of an existing livestock farm as two examples of adequate restructured or reorganized commercial enterprises.

Expanding an existing business:
An EB-5 investor can also create a “new” business by expanding an existing one. Through this avenue, an EB-5 investor must either expand the net worth of an existing business or the number of employees by 40%. If an investor chooses to increase the number of employees, he/she could be required to create more than 10 jobs; the larger the number of existing employees, the more of a burden this becomes.

Pooling:
Multiple EB-5 investors can combine their money to invest in an enterprise. All investors must infuse the required amount into an enterprise and create at least 10 jobs each. All jobs created by a pooling arrangement will be distributed evenly among investors. For example, if there are 3 investors and only 21 jobs are created, this does not mean that 2 of the investors created 10 jobs each and the third investor only created one job. It means that all three investors created 7 jobs a piece.

General Requirements for Investing in a New Commercial Enterprise
o Invest in or currently be in the process of investing at least $1,000,000. If this investment is made in a company located in a targeted employment area, the minimum investment is lowered to $500,000.
o Must provide benefit to the U.S. economy in the form of goods and/or services.
o Must create 10 full-time employment positions. If an investor chooses to expand an existing business’s workforce, he/she could be required to create more than 10 jobs.
o Must be involved in the daily management of the company. Acceptable positions include acting as a corporate officer, board member, etc.