The likelihood that an EB-5 investor’s principal investment will be returned depends partly on United States Citizenship and Immigration Services (USCIS) regulations governing the “at risk” status of funds. These rules are designed to ensure that the investor’s funds remain subject to possible gain or loss during the investment period. For instance, USCIS prohibits investors from making agreements with new commercial enterprises (NCEs) that will result in the investment being returned if the investor obtains conditional permanent residence. Such an arrangement would deprive the funds of their “at risk” status; the investor would be guaranteed to get back his investment.
USCIS does authorize developers to release part of the investor’s funds once their I-526E petition is submitted and then release the remaining funds once the petition is approved. This arrangement follows the hybrid escrow release structure.
The agreements made between the investor and the regional center also have a bearing on whether the funds will be returned. For example, regional centers may pledge to return the investor’s funds if their I-526E petition is denied (EB5AN also returns related fees on certain projects).
However, investors should keep in mind that their invested funds will not be returned if their I-829 petition is denied. Additionally, it is very unlikely for the funds to be returned if an investor is disqualified from receiving an EB-5 visa due to inadmissibility. Investors may be considered inadmissible due to certain health issues or serious criminal convictions.
If the investor’s I-829 petition is approved, it will be up to the regional center in question to return the invested funds. To find trustworthy regional centers, investors must carry out careful research on their options. They should choose the regional center with the best exit strategy and the most solid track record. In contrast, inexperienced regional centers with a history of visa denials will likely be unreliable.
