How much money must an investor have in escrow to be considered “in the process of investing”?

An EB-5 investor must have irrevocably committed the entirety of their investment funds when they file their I-526 petition. The investment capital can be either invested directly in the new commercial enterprise (NCE) or placed in an escrow account. If investing in a standard EB-5 project, the threshold investment amount is $1,050,000. If the EB-5 investor’s project has a targeted employment area (TEA) designation, the required investment amount is reduced to $800,000. This requirement is outlined in detail on the online Policy Manual of United States Citizenship and Immigration Services (USCIS).

Escrow accounts offer a measure of insurance to EB-5 investors due to the possibility of having USCIS deny their I-526 petition. An EB-5 investor’s investment capital can be placed in an escrow account prior to obtainment of conditional permanent residency, provided the release of the capital is subject to two conditions: that their escrowed money will be put toward the EB-5 investment project only upon approval of Form I-526, as well as the conferring of a conditional green card. After the two-year conditional status period is over, USCIS will assess the EB5 investor’s I-829 petition to see if the escrowed funds were released and invested.

With that said, promissory notes are another option for EB-5 investors. A promissory note is a promise on the part of the EB-5 investor to pay, in lieu of actual capital. To qualify a promissory note as a substitute for capital, the EB-5 investor must be solely accountable for the note and have enough assets to honor the incurred debt. The calculated market value of a promissory note is based on its current value, rather than any different value from the past, and cannot include assets from the NCE the EB5 investor is investing in. Furthermore, almost all of the money accounted for in a promissory note must be paid for within two years. This deadline cannot be extended under any circumstances.