+1-800-997-1228
Questions & Answers

Does the entire EB-5 investment amount have to be made before filing the I-526?

I am going to invest $500k into a TEA for individual EB-5 project. I was told that I have to put $500K cash into my LLC bank account first, and then start to file I-526. I could not find the exact requirement like that in USCIS website. An internet search gives me 2 opposite answers. Many people answered this question like this: although investors do need to prove that they have the money required for an EB-5 investors’ visa, they do not have to provide their money all at once and do not have to provide cash. It is normal to make your investment using a number of different assets and to make your payments over a period of time instead of all at once. However, I also found answers stating that the investment must be made complete before the end of the two year conditional residency period but that the investor does not need to commit the entire capital investment immediately. But I found one answer from only one website it states like that the entire capital investment amount must be invested and already at risk within the commercial enterprise when the I-526 is filed. I was totally confused by the stark contrary answers, and would like some professional opinion on this question. Thank you.

Answers

  • Avatar

    Mona Shah

    Immigration Attorney
    Answered on

    Yes the full investment money of either $500,000 or $1M must be at risk (either in escrow for a project, or directly invested) PRIOR to filing the I-526.

  • Avatar

    Reza Rahbaran

    Immigration Attorney
    Answered on

    B-5 funds are considered ‘at risk’ and ‘invested’ once they are transferred to the account of the new commercial enterprise. There will be many other factors at play that will determine how much of those funds must be spent before you can file your I-526 petition, there is no set threshold. For further information please contact Rahbaran & Associates.

  • Avatar

    Ying Lu

    Immigration Attorney
    Answered on

    Though regional centers usually ask investors to make full investment before the I-526 filing, you can make investment gradually in an individual EB-5 project. However, you cannot just sit the money in the new commercial enterprise’s business bank account because USCIS will not think that the money is ‘at risk’. It will be beneficial to your I-526 application if part of the funds has been used to purchase equipment, tools and etc. before you file your I-526.

  • Avatar

    Julia Roussinova

    Immigration Attorney
    Answered on

    Typically, you must have evidence that you have invested or are in the process of investing the requisite amount of capital into a target investment, and that the invested capital is at risk at the time of filing of I-526 petition. This could be achieve by properly drafted documents. Evidence of mere intent to invest without the present commitment is not sufficient to show you are actively in the process of investing. Other assets may be used in a direct EB-5 case, such as cash equivalents, inventory, equipment, indebtedness secured by your personal assets (not the assets of the target investment). It is possible to use a legal mechanism, such as placing the invested capital into an escrow account established by a LLC, pending visa issuance. This would generally not only irrevocably commit the invested funds to the LLC but would also give you some assurance that, in the event I-526 petition were denied, your invested capital would be returned. Do not hesitate to contact me should you have further questions.

  • Avatar

    Lei Jiang

    Immigration Attorney
    Answered on

    Yes. Generally speaking, you need the entire 500k at risk.

  • Avatar

    Philip H Teplen

    Immigration Attorney
    Answered on

    The investment can be staged over time but must be completed by the time or requesting removal of the conditional residence. However, the investment must be started in order to make the initial filing. The investment does not have to be cash as it could be inventory or equipment or such other asset necessary for the business project. i hope this help clarify and I would be happy to discuss further.

  • Avatar

    Rakesh Mehrotra

    Immigration Attorney
    Answered on

    An EB-5 investment can be in the form of cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the investor as long as investor is personally and primarily liable. By the strict wording of the law, the entire investment amount does NOT have to be made before filing the I-526. The law states that the alien must invest or be actively in the process of investing, the capital. But the law also states that evidence of mere intent to invest, or of prospective investment arrangements entailing no present commitment, will not suffice to show that the petitioner is actively in the process of investing. The investor must show actual commitment of the required amount of capital. So it is not the case that the investor can invest $250k, leave the rest in his bank account, and then after approval of the I-526, invest the balance ? leaving money in one?s personal account does not show that the capital is committed or at-risk. However, a potential investor could commit the funds to an escrow account, as long as the escrow agreement contained very specific clauses regarding when the money would be dispersed to the enterprise, at what intervals, in what amounts, etc. Such an agreement should be sufficient to show that the investor?s fund are at-risk. With most Regional Centers, the Limited Partnership that administers the commercial enterprise already has well-established escrow accounts and agreements that outlines these details. As far as the I-829 filing is concerned the entire amount does need to be invested by the I-829 filing, notwithstanding the ?in the process of? language. Hope this clarifies your confusion.

  • Avatar

    David Hirson

    Immigration Attorney
    Answered on

    The funds do not have to be paid in all at once. Details of the cash investment must be clearly denied in the comprehensive business plan (see Matter of Ho). Also the availability of the money to be invested must be shown at the time of filing the I-526.

  • Avatar

    Elizabeth Krukova

    Immigration Attorney
    Answered on

    Sure, enough what you have read so far is correct. With an individual project you do not have to commit the entire investment at once. The law allows you 2+ years to do so. We have done many of these petitions and the investors do not have that money at once and are investing the funds gradually. It is only with the Regional Center EB-5 you have to commit the entire amount at once.

  • Avatar

    Jeffrey E Campion

    Immigration Attorney
    Answered on

    If its your project, then you have to have a matter of Ho compliant business plan to show how the money will be invested to produce the jobs, proof you have the funds, and probably spend at least $250,000 before filing.

  • Avatar

    Jinhee Wilde

    Immigration Attorney
    Answered on

    The regulation specifically state that the I-526 petitioner to show at the time of I-526 filing that he/she ‘has invested or is actively in the process of investing the requirement amount of capital, the petition must be accompanied by evidence that the petition has placed the required amount of capital at risk’. Evidence of mere intent to invest or of prospective investment arrangements entailing no present commitment will not suffice. The types of evidence cited by the regulations entail: (1) bank statements showing amount deposited into the business enterprise; (2) evidence that assets have been purchased for us in the enterprise; (3) evidence of property transferred from abroad for use in U.S. enterprise; (4) evidence of monies transferred or committed to be transferred to U.S. enterprise; and (5) evidence of any loan or promissory note or other security agreements secured by assets of petitioner committed to the U.S. enterprise. While it appears that you do not have to put the entire funds immediately into the enterprise bank account, USCIS will review very carefully to see if the funds were indeed fully committed and at risk before approving the I-526. Further, even after you receive the approval, if the funds are not fully committed and utilized to create jobs before conditional residency expires in 2 years, your conditional green card will be revoked.

  • Avatar

    Clem Turner

    Securities Attorney
    Answered on

    Most regional centers will require your entire $500,000 to be paid (into escrow) before they will consider you an investor in their project.

  • Avatar

    Anthony Ravani

    Immigration Attorney
    Answered on

    You can file I-529 with less. But usually you would get an RFE and until the entire amount is not there USCIS does not process the case.

  • Avatar

    Rebecca White

    Immigration Attorney
    Answered on

    The funds should be in escrow. The USCIS will want to be able to trace the source of the funds and see that they are available and at risk. Once the I-526 is approved then the funds would be moved from the escrow account. The funds do need to be available for use, even if then distributed out over a period of time.

  • Avatar

    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The EB-5 immigrant investor law and regulations do not require that all of the capital be invested prior to I-526 filing/approval. The regulations do require a credible and feasible comprehensive business plan showing how the capital will be invested/spent. The investor must have invested, or be actively in the process of investing the required amount of capital.

  • Avatar

    Margo Chernysheva

    Immigration Attorney
    Answered on

    It is a complicated issue. There are two separate questions asked: 1) is entire amount required to be invested at the time of filing and 2) what type of investment qualifies. 1) The statute states that ''the investor has invested or is in the process of investing'' required amount into the enterprise. Hence suggesting that the amount does not have to be all invested at the file of the filing. Yet, in practice, applications with incomplete investments would have difficulty getting approved. Substantial, or better yet, completed amount already invested should be shown in order for I-526 to be approved. 2) Addressing your second question: the total investment amount does not have to be all cash - it can be a combination of assets such as equipment, inventory, etc. Evidence of current market value of each non-cash asset has to be submitted with the application as well.

  • Avatar

    Taher Kameli

    Immigration Attorney
    Answered on

    You are correct. The statute says that the investment has to be made within two years. However, the USCIS likes to see the investment amount being committed prior to the approval of the I-526. Therefore, many regional centers require you to place the $500K in an escrow account. This way the USCIS feels that the money is committed to the project with one condition which is the approval of the I-526.

  • Avatar

    Boyd Campbell

    Immigration Attorney
    Answered on

    No, but it''s a good idea.

  • Avatar

    Steven Anapoell

    Securities Attorney
    Answered on

    Practically speaking, when you file your I-526 petition, you must be able to demonstrate that your capital is at risk. This is typically accomplished by an individual depositing his or her investment amount into an escrow account established by the new commercial enterprise. The Escrow instructions typically state that upon approval of your I-526 Petition by USCIS, the capital is released to the new commercial enterprise. If denied, the capital is returned to the investor.

  • Avatar

    Daniel P Hanlon

    Immigration Attorney
    Answered on

    The entire investment must be made before the end of the 2-year conditional resident period. I recommend that you contact us for more information.

  • Avatar

    Neville M Leslie

    Immigration Attorney
    Answered on

    Yes, the entire investment amount has to be made prior to the I-526 filing.

  • Avatar

    Stephen Berman

    Immigration Attorney
    Answered on

    The form instructions state you can submit evidence that you have invested, or are actively investing in the enterprise.

Add your comment

Use a Facebook account to add a comment, subject to Facebook's Terms of Service and Privacy Policy. Your Facebook name, photo & other personal information you make public on Facebook will appear with your comment.