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Do I need to invest before the I-526 petition is filed?

I am looking into starting a business under direct EB-5. I understand that I need to register a company and move the funds into it before the I-526 is filed. But do I need to actually start investing (sign leases or start construction) before the I-526 is filed? Or can I wait for the I-526 approval before investing? Without approval I will not be able to work and run the business.

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You may use an escrow mechanism for the funds invested which may be released to the enterprise upon approval of the I-526. However, you must have a comprehensive business plan, acquire licenses, permits, etc. to show meaningful business activity has commenced. Funds invested must be at risk. Many direct investments have a manager or partner within the United States that can start to take certain concrete steps on behalf of the enterprise. Please consult an experienced immigration attorney for further guidance.

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    Oliver Huiyue Qiu

    Immigration Attorney
    Answered on

    In theory, there is no need to sign the lease or start the actual business at the time of filing the I-526 or at the time of investment. However, USCIS may take issue at the lack of a lease as to whether (1) the investment is truly "at risk"; or (2) whether New Commercial Enterprise truly exists. Instead of a binding lease, you may elect to present a Letter of Intent with the landlord. You may not hold off the investment after the I-526 approval. USCIS regulations require that the $500,000 or $1 million investment must be committed irrevocably.

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    Ed Beshara

    Immigration Attorney
    Answered on

    Your personal investment funds can be placed in an escrow account and the condition for the release can be the approval of the I-526 petition.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Generally, yes. Part of the I-526 petition is proof you made the investment. Some projects will set up escrow accounts to hold the investment funds until I-526 filing or approval, which USCIS has accepted as an approvable practice. If you are starting your own business, you will need to show that the business will commence and create jobs.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The EB-5 law and regulations require than an investor have invested or be in the process of investing the required amount of capital in a new commercial enterprise (NCE) in order to qualify. In addition, the NCE must have undertaken some concrete, meaningful business activity before the I-526 petition will be approvable (the petition must be approvable when filed). That does not mean that your NCE must be fully operating when your I-526 is filed, but it does mean that you must prove to the USCIS that some business activity has started and the preparations have reached a critical mass such that it is more likely than not the business will be fully operational in the near future. This is the requirement that the capital must be at risk and subject to both potential gain and loss. Many EB-5 investors have a manager or a partner in the United States who can help move the process along and obtain necessary permits, leases, invoices, receipts, etc., to show that the NCE is starting to execute its comprehensive business plan.

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    John J Downey

    Immigration Attorney
    Answered on

    You may wait until the approval to start, but you should make it clear in your business plan. I would form the corporation and also move funds into an escrow account, designating the funds for the corporation upon receipt of I-526 approval.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Yes; funds must be committed to the project.

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    Ian E Scott

    Immigration Attorney
    Answered on

    In order to file the I-526 for an EB-5 visa, you must have invested the required amount ($500,000 or $1 million) in the United States BEFORE filing the application.

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    Mark Szu-Yu Chang

    Immigration Attorney
    Answered on

    Thank you for the inquiry. Congratulations on taking a positive step towards American immigration. To file the I-526, you must have invested or actively be in the process of investing in the enterprise that meets the immigration requirement for EB-5.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    Yes, your funds must be at risk for USCIS to adjudicate your I-526.

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    Yevgeny Samokhleb

    Immigration Attorney
    Answered on

    Prior to filing, you are required to be "actively in the process of investing" the required funds, which means you should transfer a substantial amount prior to filing. You do not need to start developing the project, but you do need to have various required permits and licenses approved or applied for prior to filing.

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    Louis M Piscopo

    Immigration Attorney
    Answered on

    Yes, your must take all the steps you listed, and others before the petition can be filed. While the full $1 million/$500,000 does not have to be fully invested at the time of filing, a significant amount of it must be, since the petition cannot be approved based on intending to invest.

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    Emre Ozgu

    Immigration Attorney
    Answered on

    Yes you do need to spend most of the investment funds before you can file the I-526 petition. Having it sitting in a business bank account with just a plan on how you will spend it is not enough.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Yes you have to invest before - may need to look at other visa options, such as an E-2, in the interim.

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