Direct EB-5 is the original, permanent standalone form of the program: an individual investor places capital into a single new commercial enterprise the investor will operate, and that enterprise must create ten qualifying W-2 jobs without the indirect-job credit available in regional-center cases.
Direct EB-5 sits under INA section 203(b)(5) and 8 C.F.R. section 204.6. Unlike the regional-center program at INA section 203(b)(5)(E), the direct path is not subject to a sunset date. It was not created or reauthorized by the EB-5 Reform and Integrity Act of 2022 (RIA); it has existed since the program began in 1990 and continues regardless of whether Congress reauthorizes the regional-center program past September 30, 2027. For investors focused on the September 30, 2026 grandfathering deadline (RIA Section S), the direct program is one of the few options that does not depend on filing before that date.
The post-RIA investment minimum is $1,050,000 in a non-TEA project and $800,000 if the project itself meets the rural, high-unemployment, or infrastructure criteria that qualify for the reserved-visa set-asides under INA section 203(b)(5)(B)(i)(I) and the definitions at section 203(b)(5)(D). Set-aside reserved-visa categories are theoretically available to direct investors, but in practice it is rare for a single-investor operating business to independently sit in a qualifying census tract or to qualify as an infrastructure project administered by a government entity. Most direct cases proceed at the $1,050,000 non-TEA minimum.
The defining post-RIA change for direct EB-5 is that only one investor may participate in any single direct EB-5 enterprise. The pre-RIA practice of pooling several direct investors in one operating business is no longer available. Each investor must have an enterprise of their own. Whether a given fact pattern satisfies the one-investor rule is decided case-by-case by the adjudicating officer based on the entire petition record.
Job creation in direct EB-5 is limited to direct W-2 employees of the new commercial enterprise. The investor must show ten full-time positions of 35 hours per week or more, held by U.S. workers (citizens, lawful permanent residents, or others authorized to work in the United States who are not the investor or the investor's family members). Indirect and induced jobs computed by economic methodology, which are central to regional-center cases under INA section 203(b)(5)(F), are not available in direct EB-5. The RIA's caps on indirect jobs (90 percent if construction lasts at least two years, 75 percent otherwise) and the construction-period discount do not apply because there are no indirect jobs to count.
The petition must include a comprehensive Matter of Ho-compliant business plan (22 I&N Dec. 206 (Assoc. Comm'r 1998)), with hiring tables tying each projected W-2 position to a defined role, salary, and start date. Practitioners typically build the hiring schedule month by month over the conditional-residence period rather than back-loading hires near the I-829, both because adjudicators tend to find phased growth more credible and because the Form I-829 will require evidence (typically payroll records, quarterly tax filings, and W-2s) that the ten positions actually existed and were occupied.
Because the direct investor will personally manage the business, USCIS expects operational evidence at I-526 (commercial leases, vendor contracts, opening payroll, business licenses) and again at I-829 (tax filings, ongoing payroll, lease renewals, evidence the business is operating in substantial conformity with the original plan). Material departures from the I-526 plan can raise material-change concerns under 8 C.F.R. section 103.2(b). Whether a given departure is material enough to undermine the petition is decided case-by-case by the adjudicating officer.
Restaurant, hotel, fitness, or service-brand franchises where the franchisor's operating model creates a defensible hiring schedule. The franchise disclosure document and unit-economics history can support the Matter of Ho plan.
Full-service restaurants, boutique hotels, and event venues where ten W-2 positions are realistic during conditional residence. Cash-handling intensity raises diligence questions on revenue-driven hiring assumptions.
Small contract manufacturing, food production, or specialty fabrication operations. Capital expenditure on equipment and a defined production runway can support a credible Matter of Ho plan.
Accounting, engineering, design, or consulting practices the investor will lead, where licensed-professional headcount plus support staff reaches ten. Ownership-and-control issues warrant care.
Hotels developed and operated by the investor, particularly limited-service properties at the small end of the franchise system, where direct front-desk, housekeeping, and maintenance hiring totals ten or more.
Early-stage operating companies with credible engineering and operations hiring schedules. Distinguishing a venture-backed company from an immigration vehicle requires careful documentation of capital, market, and revenue assumptions.
The structural advantage is permanence. The regional-center program is currently authorized only through September 30, 2027, and Section S protects only those I-526E petitions filed before September 30, 2026. Investors who cannot file by September 30, 2026 (because source-of-funds documentation is incomplete, because a project they trusted is not yet ready, or because they are not yet financially positioned) face genuine uncertainty in the regional-center program. Direct EB-5 is one of the few structures available to them without dependence on Congressional reauthorization. Whether reauthorization will occur and on what terms is unknown.
The structural disadvantage is the operational burden. The investor must run, or substantively manage, an operating U.S. business for the duration of conditional residence. This is incompatible with maintaining unrelated full-time employment in many cases, and it is qualitatively different from the regional-center model in which the investor is a passive limited partner. The job-creation math is also harder: ten W-2 positions in a single small business is a real hiring program, not an economic-impact-model output.
The post-RIA one-investor-per-business rule has reshaped the universe of usable direct projects. Pre-RIA structures that pooled three to ten investors into one franchise unit or one small hotel are no longer available. Each investor needs an enterprise of their own. That increases both the per-investor capital intensity and the diligence burden, because the investor (or the investor's counsel) must underwrite an entire single-investor business rather than slotting into a pre-vetted pooled vehicle.
Direct EB-5 also tends to be slower to evaluate at intake. Where regional-center sponsors can present a pre-approved I-956F project with an offering memorandum, economic study, and standard subscription documents, a direct investor is typically assembling the project from the operating business outward: lease, hiring plan, capital deployment schedule, and source-of-funds package, all bespoke. Whether that effort is worth it relative to alternative paths is decided client by client.
Practitioner due diligence for direct EB-5 begins with the operating business. The investor (with their counsel and a financial advisor) should evaluate the underlying business as if EB-5 were not part of the picture: market, competition, capital requirement, working-capital cushion, realistic ramp curve, and sensitivity to a hiring schedule that must reach ten full-time W-2 positions and sustain them. AILA practitioners observe that businesses that do not stand on their own commercially also tend not to stand up at I-829.
The Matter of Ho business plan sits at the center of the legal analysis. The plan must address each of the elements identified in 22 I&N Dec. 206, including a description of the business, market analysis, marketing strategy, organizational structure, personnel experience, staffing requirements, and a hiring schedule that produces at least ten qualifying W-2 positions within a defensible window. Practitioners report that hiring schedules that pile most positions in the final months of conditional residence draw more scrutiny than schedules that show steady ramp from opening.
TEA designation, where claimed, requires documentation that the project's specific location independently meets the rural definition (outside any metropolitan statistical area and outside any city or town with population of at least 20,000) or sits within a qualifying high-unemployment census tract. State certification is no longer available; TEA is determined by USCIS through the petition adjudication. TEA validity in the direct context runs from I-526 approval or capital deployment, with USCIS guidance on renewal practices still developing.
Source-of-funds and path-of-funds documentation must cover the full investment plus administrative fees. Practitioners typically build a documentary chain that addresses both how the investor earned the capital (origin) and how the capital moved to the new commercial enterprise (path), including bank statements, tax returns covering at least seven years (RIA section L), business-registration documents where applicable, and judgment statements. Whether a given documentary package is sufficient depends on the entire record and the discretion of the adjudicating officer.
EB-5 approval rates have fallen materially over the past several adjudication cycles, and the rate at which USCIS issues Requests for Evidence, Notices of Intent to Deny, and direct denials has risen sharply. The June 2025 reinstitution of the CISNA/EDLO directive (instructing officers to deny rather than RFE in close cases) and the routine pairing of I-829 denials with Notices to Appear in removal proceedings are reshaping how EB-5 practice is done. Profiles that we and other firms saw approved without challenge two or three years ago are now drawing aggressive scrutiny, particularly on direct-business job-creation methodology, Matter of Ho business-plan rigor, and one-investor-per-enterprise compliance, and some are being denied outright on records that, on their face, look as strong as records that previously cleared. Officers also vary considerably in how they apply discretionary judgments under the post-RIA framework. This climate is not unique to direct EB-5 petitions, but it is real, and it informs how we counsel clients before, during, and after filing.
This page describes patterns we have seen across many direct EB-5 petitions. It is general information about how this type of structure is typically analyzed, not a prediction about any specific case and not a representation that meeting any particular evidence pattern will result in approval. EB-5 outcomes turn on the entire record, the strength of the legal and factual arguments, the current adjudication climate, and the discretion of the adjudicating officer.
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Immigration counsel to Fortune 500 employers at a national firm · Adjudicated 12,000+ visas at the U.S. Consulate, Mexico · Working in U.S. immigration since 2008
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