A new commercial enterprise includes:
A company formed after Nov. 29, 1990—For the enterprise to be “new” the investment must be in a company that was formed after Nov. 29, 1990. An investor no longer has to “establish” the commercial enterprise; he must only “invest” in a new commercial enterprise. (A). Thus, an investor who did not incorporate the company or establish the company, but invested in a company that began after Nov. 29, 1990 is investing in a new commercial enterprise. In this case the investor does not need to show that the commercial enterprise was “restructured/reorganized”
A company formed before Nov. 29, 1990—A commercial enterprise in existence prior to Nov. 29, 1990 will be considered “new” for purposes of the law if: (a) it has been restructured or reorganized so that a new commercial enterprise results; or (b) it has been expanded so that a substantial change in the net worth or number of employees has occurred.
Regarding Restructuring/Reorganizing: The mere change in decor and implementation of a new business plan is not sufficient restructuring to result in a new commercial enterprise.If the basis is due to restructuring, the petitioner may not create a net loss of employment. In determining restructuring so that a new commercial enterprise exists, USCIS will look to see if there are real changes in modes of operation, products and services offered, business structure, organization of personnel and other aspects indicating that a new business has resulted.
Re: Expanded Business: Substantial change means a 40% increase in either the net worth or the number of employees. The investor must still show the minimum financial investment. However, the 40% increase can be reached by counting all the capital contributed by other investors even investors who are USCs/ LPRs and/or not desirous of applying for status.