Risks in EB-5 Projects & Job Creation: A Guide for Investors to Remain Compliant.

Published Date: August 19, 2025

Understand the risks involved in EB-5 projects, what is meant by “at risk,” and job creation requirements. Learn how fully compliant EB-5 projects protect investors and support the green card process.

At ICC, we work with international investors to help them navigate the EB-5 Immigrant Investor Program in a compliant and confident manner. This U.S. program brings together foreign investment and U.S. job creation in a way that, if properly structured and filed, can create a pathway to permanent residency. Two factors drive EB-5 success: project risk and job creation. Our immediate purpose is to ensure that every action meets the USCIS requirements for EB-5 job creation and at-risk requirements, while bearing in mind the interests and protections of investors. (USCIS¹)

Understanding EB-5 Project Risk

Under USCIS policy, EB-5 capital must be at risk to generate a return. That is, investors should face both a potential for gain and a risk of loss. A guaranteed return or repayment eliminates that risk and violates EB-5 regulations. (USCIS²) (JTC²)

At ICC, responsible risk management does not equate to zero risk.

Strong EB-5 projects are frequently:

Demonstrate sound commercial viability based on independent market studies, demand forecasts, and conservative financial modeling instead of hopeful expectations of future gains.
Secure proper capital that includes a complete capital stack, including pre-identified construction budgets, operating budgets, and sources/uses of funds (and does not depend on a crowdsourced fundraising effort in the 11th hour).
Clearly define what construction and opening schedules are, along with job-creation milestones, so investors know when and how business activity generates qualifying employment.
Are managed by experienced developers/operators with relevant experience and a history with the same asset class (for example, hospitality, healthcare, manufacturing, etc.), as execution risk is lower when the sponsor has developed and opened projects in that class many times before.
Have an independent financing structure that is not dependent on the immigration outcomes of a single investor recruiting a full slate of EB-5 investors. This will delay the project’s construction and cause a cash flow delay, which will cascade into job-creation timelines and the removal of the project from the schedule, as it freezes until each slot is filled with EB-5 investors.

EB-5 investment due diligence

Ask the developer or operator contractor for the entire capital stack (equity, senior loan, tax credits, bridge financing, EB-5 tranche) and for third-party independent feasibility, appraisal, etc., for the project so that you can perform due diligence internally. If the project refuses any one facet of this process, it is a clear red flag.

EB-5 Job Creation Requirements

The basis of EB-5 success is the number of jobs created. USCIS requires that each investor create at least 10 full-time U.S. jobs for qualified workers. Such positions must be permanent (35+ hours per week) and cannot be filled by the investor or their immediate family. (USCIS²)

EB-5 distinguishes between two types of employment opportunities: direct, or workers engaged by the concerned enterprise, and indirect, arising from the overall economic activity generated by the project expenditure. These EB-5 Regional Center jobs typically fall under the Regional Center model, which uses USCIS-approved economic models. (USCIS²)

Sophisticated projects exceed the 10-jobs-per-investor threshold; in fact, they design for a buffer of 12-14 jobs to ensure compliance when assumptions or circumstances change. Investors are initially granted a conditional two-year green card. USCIS requires evidence that the investment was made and that the mandated jobs were created or will soon be created to grant removal of conditions. (USCIS¹)

The Connection between Project Risk and Job Creation

The financial risk not only reduces the income but also puts the immigration process at stake. Projects cannot document the qualifying jobs required for permanent residency without successful construction and operation. (USCIS¹)

ICC conducts thorough due diligence: it assesses the number of investors relative to job allocation, project financing, the investors’ positions, and legal protections. Indicators of strong alignment include construction well underway, independent of EB-5 funding, multiple revenue streams to ensure operational stability, and economic-impact analyses indicating the creation of surplus jobs. (USCIS²)

Our focus is clear: if a project cannot create and document sufficient jobs, the investor’s immigration benefit is at risk-even if the investor’s money is fully spent. (USCIS¹)

Serious investors should ask due diligence questions before funding, such as:

How many EB-5 investors will the project accept, and how do jobs get allocated to them? There is not an unlimited supply of EB-5 jobs, and job creation is usually allocated on a per-investor basis.

Will the project break ground, continue to construction, and open its doors if not all EB-5 slots are filled? If the answer is “no,” the immigration success of later investors will depend on the outcome of future fundraising efforts, which increases risk.

What is my position on the capital stack?

In a bankruptcy situation, if banks, tax-credit lenders, or senior lenders are repaid first, and EB-5 investors are structurally the last party to get any recovery, the recovery rights would be weaker in a downside case.

Does the legal structure protect investors or protect the developer?

Some EB-5 offerings have developers create many internal LLCs, which may not give investors any direct claim to tangible assets if something goes wrong. An investor should check whether any “guarantees” are secured by collateral or are just promises without enforceable security.

Signs that compliance and investor protection may be strongly aligned include:

Construction is already underway or completed before EB-5 investor funds arrive; therefore, execution and timing risk around job creation has been reduced.

There are multiple streams of operating revenue, such as hotel operations and event revenue, in addition to food and beverage ownership, which means the project is not relying on a single narrow stream of cash flow.

The economic-impact analysis (used to support indirect job counts in a Regional Center context) shows a surplus of qualifying jobs over the minimum number USCIS has set for every investor. USCIS + 2 USCIS + 2.

Bottom Line for the investor:

Unless the project can create and document sufficient qualifying jobs, the investor’s immigration benefit is at risk, regardless of whether the investor’s funds are entirely spent.

Case Study: Compliant, Lower-Risk EB-5 Structure in Action

The Canopy by Hilton: Minneapolis Mill District project has been one of our thorough checks in practice. The hospitality property, which is situated in Minneapolis–St. The Paul metro area is a good example of how EB-5 funding can maintain compliance while reducing unnecessary risks. (USCIS²) (JTC²)

The hotel is already built and operational, indicating that the capital invested by the investors is being used in a business that generates income. The total capital stack is approximately $51.35 million, with $13.9 million in government-backed tax credits, loans, and secured financing, not dependent solely on EB-5 funds. EB-5 investors hold a second-position security interest in tangible assets valued in the tens of millions. (JTC¹). The project has already created more than 600 qualifying jobs, surpassing USCIS’s requirements.

Another critical point is location. Minnesota’s diverse economy continually drives commercial demand, including the headquarters of Fortune 500 companies — UnitedHealth Group, Target, Best Buy, 3M, and General Mills — representing an enduring, diversified base for longevity. Wikipedia⁹ tcbmag.com¹⁰

This case proves that projects can comply with the EB-5 at-risk rule while offering genuine downside protection and credible job creation. (USCIS²) (JTC²)

ICC’s Final Guidance for EB-5 Investors

An EB-5 investment is a financial and immigration decision. ICC helps investors confirm capital deployment and job creation, and ensures investor protection complies with USCIS requirements. Investors should confirm compliance by reviewing a USCIS-compliant business plan and job-creation model. Before committing capital: confirm project viability, request proof of collateral, and verify sustainment requirements. Together, the compliance, evidence, and protection provide the investor with the strongest possible position to achieve permanent residency. (USCIS³) (Colombo & Hurd³)

Frequently Asked Questions (FAQs)

Q1. What does at risk’ mean within the EB-5 Program?

It means the investor’s capital must be at risk, both in the chance of loss and in the opportunity for gain, with no guaranteed returns. (USCIS¹)

Q2. How many jobs must each EB-5 investor create?

Each investor must create at least 10 full-time jobs for U.S. workers. (USCIS⁵)

Q3. What is the difference between direct and indirect jobs?

Direct jobs are on the project’s payroll; indirect jobs result from project spending and are mainly recognized in Regional Center projects. (USCIS⁴)

Q4. Can EB-5 investments be guaranteed?

No, a repayment guarantee violates USCIS guidelines. The investment should be at risk until job-creation goals are met. (USCIS⁸)

Q5. When does USCIS evaluate job creation?

During the Form I-829 filing to remove conditions, usually around two years after conditional residency starts. (USCIS⁶)

Q6. What are the characteristics that lessen the EB-5 risk?

Normally, finished, fully funded projects with verified job creation and secured collateral are considered lower risk. (USCIS⁹) (USCIS¹⁰)

References

USCIS Policy Manual, Volume 6, Part G, Chapter 2 – Immigrant Petition Eligibility Requirements (EB-5 Investors).
USCIS – EB-5 Immigrant Investor Program.
USCIS Policy Manual, Volume 6, Part G – Investors.
USCIS Policy Manual – Job Creation; Direct and Indirect Jobs.
EB-5 Job Creation Requirement: Full-Time = 35+ Hours/Week.
Conditional Permanent Residence and Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status).
USCIS Guidance on Sustainment / “At Risk” Over the Conditional Period.
At Risk” Definition Interpreted in Practice (Chance of Gain, Risk of Loss, No Guaranteed Return).
Minnesota Economic Strength and Corporate Base.
Minnesota Macroeconomic Output.
Policy Framing of EB-5: Stimulating U.S. Economic Growth and Employment.