To comply with USCIS regulations, EB-5 investors must be actively involved in the management of the company they invest in. They can satisfy the requirements by providing evidence of policymaking or holding a position title with associated duties. Voting rights are acceptable to fulfill policymaking requirements. These management requirements apply to both direct and regional center investments, and the USCIS doesn't distinguish between the two. The Regional Center Program and Direct Program both accept language in the operating agreement that allows investors to provide policy.
Immigration lawyer Robert Divine explained that the USCIS has not made management requirements a significant issue.
“The requirement in the statute to engage in the enterprise is the same in a direct investment and a regional center investment; there is no difference. Whatever was passable in the Regional Center Program is also passable in the Direct Program. So language in the operating agreement, or whatever type of agreement for the enterprise, that the investor has the right to provide policy is likely to be sufficient. It’s not an issue that the Immigration Service has chosen to make a big deal of.”
