Under the EB-5 program, the concept of “investing” requires that an investor place the required amount of capital “at risk for the purpose of generating a return on the capital placed at risk.” An investment made under the program requires a “risk of loss” as well as a “chance for gain”. This also means that there must not be a guaranteed return, including a guaranteed interest rate of return, promised to the investor.

Additionally, if an investor is guaranteed the right to own or use a particular asset such as real estate, then the likely present value of the guaranteed ownership or use of such asset will lower the eliminate the at risk requirements of their investment.

At risk also means that the business being invested into must be able to demonstrate that it has or will have some business activity that the investment will be utilized to carry out the investment. Funds simply placed into a bank account will not be considered at risk without a commitment to invest the funds.

Further, the “at risk” requirements for the EB-5 program must be maintained by an investor during their conditional residence period.

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An EB-5 investment into a “new commercial enterprise” (NCE) must be an “at risk equity investment. This means that the NCE must use the capital only for profit in a job creating business where the capital could be lost if the business does not go well. Also the NCE itself or any other entity cannot guaranty investment return and cannot provide security for the investment such as a promise of a condominium or other tangible or intangible property in lieu of investment return. But NCEs often in turn make a business of investing the capital in or loaning it to another “job creating enterprise” (JCE). So far USCIS has allowed NCEs to obtain security or guarantees for repayment by JCEs, even though that in turn can make the EB-5 investment in the NCE more secure. If USCIS finds that investment in an NCE was not “at risk” this can lead to denial of the I-526 petitions of all the NCE’s investors, who could only start all over with a new I-526 after cure of the problem, so qualification under at risk rules is extremely important for a project.

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To qualify as an EB-5 investment, the immigrant investor must actually place his or her capital "at risk." The mere intent to invest is not sufficient.

If the immigrant investor is guaranteed a return, or a rate of return on all or a portion of his or her capital, then the amount of any guaranteed return is not at risk. For the capital to be at risk there must be a risk of loss and a chance for gain.

Additionally, the full amount of the investment must be made available to the business​​)​ most closely responsible for creating the employment upon which the petition is base​d​. In the regional center context, the immigrant investor must establish that the capital was ​invested into the new commercial enterprise and ​that the full amount ​was subsequently made available to the job-creating entity

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