No. Only capital actually invested or actively in the process of investment counts. An earn-out contingent on future revenue targets is not capital until it is paid.
A contingent right is not qualifying capital
The EB-5 regulations define capital as cash and other assets owned by the investor and placed at risk, and require that the full qualifying amount be invested or actively in the process of being invested when the petition is filed. An earn-out that depends on the sold firm meeting revenue targets is a right to be paid later if something happens; it is neither invested nor in the process of being invested, and a promise to contribute it later does not change that. The current thresholds under the 2022 reform law are US$1,050,000 generally or US$800,000 for a targeted employment area or infrastructure project, with statutory adjustments scheduled from 2027, so verify the figure for the project's designation.
If the closing payment, after tax and after distribution from the holding company, does not reach the applicable amount, the investor needs other documented assets or a later filing date. The ten-job requirement and lawful-source requirement apply regardless of how the shortfall is solved.