For direct EB-5 investors, when must the full investment be made?

According to the Code of Federal Regulations,

A petition submitted for classification as an alien entrepreneur must be accompanied by evidence that the alien has invested or is actively in the process of investing lawfully obtained capital in a new commercial enterprise in the United States which will create full-time positions for not fewer than 10 qualifying employees.

However, while EB-5 law specifically states that investors may be “in the process of investing” the necessary amount of capital, in practice, USCIS expects to see the entire amount already at risk at the time the I-526 petition is filed.

According to the United States Citizenship and Immigration Services (USCIS) Policy Manual, “to qualify as an investment, the immigrant investor must actually place his or her capital at risk. The mere intent to invest is not sufficient.” Placing the entire amount at risk by the time the I-526 petition is filed clearly shows that the investor has moved beyond the intent to invest.

The at-risk requirement relates to the investment incurring the risk of loss and the chance of gain rather than other financial or immigration risk. Thus, funds held in escrow until the investor has obtained conditional permanent residence are deemed fully committed if the release of funds are contingent on (i) approval of Form I-526 and (ii) approval of Form I-485 or the investor securing a visa and admission to the United States. When filing Form I-829 to remove conditions on permanent residence, the investor will have to provide evidence that the funds were released and invested upon the investor securing conditional permanent residence.

Furthermore, depending on the business plan, incremental payments may be permitted. Because this adds complexity to the EB-5 visa application, it would be advisable to consult an experienced EB-5 immigration attorney about this before proceeding.