While it may be possible to establish an EB-5 business in phases, doing so would be complicated and would increase risk for the investor. During the EB-5 visa application process, petitions must be submitted at specific intervals. For the investor to qualify for the EB-5 visa, the petitions must include evidence that investment and job creation milestones have been reached. Creating the new commercial enterprise (NCE) in multiple phases could mean investors miss these crucial milestones.
An investor who wants to create an NCE in phases faces several barriers. When the investor files the I-526 petition, they must have invested or be in the process of investing all required funds into the NCE, and the funds must be fully at risk and irrevocably committed. If the investor’s I-526 petition is approved, they are granted conditional permanent residency for two years. Within 21 to 24 months of being granted conditional residency, they must submit the I-829 petition. Generally, as part of this petition, they must provide evidence that the employment creation requirement has been satisfied.
Additionally, the approval of the I-526 petition relies heavily on the submission of a Matter of Ho–compliant business plan. The business plan must be detailed, comprehensive, and credible. It must show United States Citizenship and Immigration Services (USCIS) that the project meets the EB-5 program’s requirements for capital investment, job creation, and NCEs. It may be possible to formulate a business plan in which an NCE is created in multiple phases, but it would certainly be more complicated than the typical EB-5 project.
To avoid requests for evidence, delays, or outright petition denial, prospective investors should consult experienced EB-5 immigration counsel and business counsel before attempting this kind of EB-5 project or investment. Experienced EB-5 professionals will be able to fully explore the advantages and disadvantages of creating an NCE in phases, and they may be able to suggest a more suitable alternative with lower immigration and financial risk.
