One of the requirements of the EB-5 visa program is for the foreign investor to be "engaging in a new commercial enterprise." This requirement is easy to understand when broken down into three parts: (1) the commercial enterprise must be new; (2) the commercial enterprise must be commercial, or for-profit; and (3) the investor must engage in the business.

The U.S. Citizenship and Immigration Services (USCIS) defines a new commercial enterprise as a commercial enterprise that was (1) established after November 29, 1990, or (2) established on or before November 29, 1990, that is (a) purchased and the existing business is restructured or reorganized in such as way that a new commercial enterprise results, or (b) expanded through the investment so that a 40 percent increase in the net worth or number of employees occurs. The easiest way to satisfy this part of the requirement is to either create a new commercial enterprise at the time of investment, or invest in a commercial enterprise that was created after November 29, 1990. But the investor may also restructure an already existing commercial enterprise. It is important to note that a restructuring or reorganizing of the commercial enterprise is needed; purchasing and managing a business is insufficient. In addition the investor may satisfy this part of the requirement by expanding the established commercial enterprise by 40 percent in net worth or new employees. Note that this may require more than the requirement to create ten jobs.

The second part of the requirement is that the enterprise must be commercial. The USCIS defines commercial enterprise as any for-profit activity formed for the ongoing conduct of lawful business. The USCIS also provides a list of business entities that qualify including, but not limited to, a sole proprietorship, partnership (limited or general), holding company, joint venture, corporation, and business trust or other entity, which may be publicly or privately owned. This leaves the investor open to invest in any type of legal business entity, other than a nonprofit organization.

Finally the foreign investor must be engaged in the business. The investor can satisfy this requirement if he/she manages the enterprise, whether that is through daily supervision and decision-making, or through policy formation as a corporate officer or board member. This requirement can be waived if the investor goes through a Regional Center.

When these three parts of the "engaging in a commercial enterprise" requirement are met, the foreign investor has a commercial enterprise that qualifies for the EB-5 visa program.