Can an EB-5 investor invest in a project that already has I-526 approvals?

Yes, an EB-5 investor is welcome to invest in a project with previously approved I-526 petitions as long as the subscription period remains open. The presence of previously approved I-526 petitions indicates that United States Citizenship and Immigration Services (USCIS) has deemed the project a compliant new commercial enterprise (NCE) at the time those petitions were adjudicated.

However, investors should be mindful that simply because the project already has approved I-526 petitions does not guarantee approval if they file one, nor does it reflect that the investment is safe. All EB-5 investments have a degree of risk attached, as they must comply with the “at risk” requirement stipulated by EB-5 regulations. The at-risk requirement does not mean the investor must select a high-risk project, but simply that their investment must incur equal likelihood of financial loss and gain.

Furthermore, regardless of the presence of other investors in the project, the new EB5 investor must account for their own job creation quota. In accordance with EB-5 regulations, the investor must create a minimum of 10 full-time jobs with their investment capital, and these positions must be filled by authorized U.S. workers.

To maximize the chances of receiving approval of an I-526 petition, investors must provide documentation that proves their EB-5 investment funds were lawfully sourced. The following are all considered legal sources of funding: an inheritance, a business, the investor’s personal income, the profit earned from selling assets, a gift from a family member, or a loan.

Investors should also be mindful that the investment process can be long and taxing; filing the I-526 petition itself can take months, and receiving a decision from USCIS can take years. In particular, prospective investors from oversubscribed nationalities may face increased difficulties in obtaining an EB-5 visa.

Given all the necessary documentation is submitted with their I-526 petition, there is no rule that prohibits an EB-5 investor from investing in a project that already has I-526 approvals.