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

Published Date: August 19, 2025

When it comes to the EB-5 Immigrant Investor Program, one of the most important and most often misunderstood aspects is project risk and Job creation. Both are at the heart of whether your EB-5 investment will lead to a successful green card approval.

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 primary goal 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.

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. However, “at risk” doesn’t mean you have to accept unnecessary or reckless risk.

Key Factors Behind a Strong EB-5 Project:

Demonstrates sound commercial viability based on independent market studies, demand forecasts, and conservative financial modeling instead of hopeful expectations of future gains.
Secures proper capital, including a complete capital stack with pre-identified construction budgets, operating budgets, and sources/uses of funds. The project should not rely on the pooling of investors for project completion.
Clearly outlines the project’s construction timeline, expected opening date, and key job-creation milestones so investors understand when and how business operations will generate qualifying jobs.
Led by seasoned developers and operators with a proven track record in projects such as hospitality, healthcare, or manufacturing, the likelihood of successful execution increases when the sponsor has repeatedly completed and launched similar ventures.
Maintain an independent funding plan that does not rely on the immigration results or timing of individual EB-5 investors. Projects that depend on filling all EB-5 slots before moving forward often face construction delays and cash-flow interruptions, which, in turn, push back job-creation milestones and stall overall progress until every investment position is secured.

EB-5 investment due diligence

Request a full breakdown of the project’s capital structure, including equity, senior debt, tax incentives, bridge loans, and the EB-5 portion, along with independent third-party reports such as feasibility studies and appraisals. Having this information allows you to complete your own internal review. If the developer or operator declines to share any of these details, it should be viewed as a serious warning sign.

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 jobs, where the business hires workers, and indirect jobs, created through the project’s spending and economic impact. Regional Center projects usually count indirect jobs using USCIS-approved methods to remain fully compliant with program rules.

Well-structured projects plan to create more than the required 10 jobs per investor, typically aiming for 12 to 14 to meet USCIS standards, even if project assumptions or conditions change.

USCIS will only approve your permanent green card once it’s clear that your investment has created or will create the required jobs within the set timeframe, typically by the end of the conditional residency period.

The Connection between Project Risk and Job Creation

Here’s the tricky part: a project with high financial instability might fail to create jobs, putting your immigration goal in jeopardy. That’s why assessing both the project’s economic viability and its job creation plan is critical.

ICC conducts thorough due diligence: We assess 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 analysis indicating the creation of surplus jobs.

Before committing, serious investors should ask due diligence questions.

How many investors are being recruited, and where am I in that line? This matters because EB-5 jobs are allocated on a first-in, first-out basis. Can the project be started or completed without additional EB-5 investors? If it can’t, your immigration approval may depend on fundraising success.

What is my position on the capital stack?

If the project were to enter bankruptcy, senior lenders, such as banks or tax credit providers, would be repaid first. EB-5 investors, positioned lower in the repayment order, would have limited recovery rights under USCIS-compliant structures in the event of financial loss.

Does the legal structure protect investors or protect the developer?

Some Regional Center projects establish shell LLCs with the developer, which protect the developer rather than the investor. If the project fails, investors often have no real recourse. These arrangements usually come with so-called “personal guarantees,” but they do not include secured assets and offer no enforceable protection, leaving investors with only a false sense of security.

Signs that Compliance and Investor Protection are 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.

Bottom Line for the investor:

If a project cannot generate and verify enough qualifying jobs, the investor’s Green Card outcome is at risk, even when the full investment amount has already been spent.

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

The Canopy by Hilton: The Minneapolis Mill District project has been one of the most carefully reviewed offerings in our practice. This hospitality property in downtown Minneapolis is a good example of how EB-5 funding can maintain compliance while reducing unnecessary risks.

The hotel is now complete, operational, and a revenue-generating asset, further protecting the investor. 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. 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 17 Fortune 500 companies (https://mn.gov/deed/dobusiness/why-mn/our-economy) such as UnitedHealth Group, Target, Best Buy, 3M, and General Mills, representing an enduring, diversified base for longevity. 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.

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, compliance, evidence, and protection provide the investor with the strongest possible position to achieve permanent residency.

Frequently Asked Questions (FAQs)

1. 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.

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

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

3. 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.

4. 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.

5. When does USCIS evaluate job creation?

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

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

Typically, finished, fully funded projects with verified job creation and secured collateral are considered lower risk.

In case you missed earlier parts of this series, you can catch up here:

🔗 USCIS Backlogs and Retrogression

🔗 Complexity of Source-of-Funds Documentation

🔗 Policy Changes and Regulatory Shifts

🔗 Fraud and Mismanagement in the Industry