How can an EB-5 investment in a direct project be completed in installments?

Yes, it is possible for the EB-5 investment to be made in installments. The total amount of capital required must be invested before the petition is filed to remove the condition from the investor''s permanent resident status. The law requires that when filing the Immigrant Petition by Alien Entrepreneur (I-526), evidence that the alien entrepreneur had invested or is actively in the process of investing the amount required must be filed with the petition. So long as the alien entrepreneur can show that he is actively in the process of investing the $1 million dollars by providing evidence of monies transferred or committed to be transferred to the direct project, the EB-5 investment can be made in installments. However, in filing the Petition to Remove Conditions (I-829), due by the second anniversary of entering on a conditional U.S. permanent resident status, the investor must provide evidence that he or she had invested the amount required and that the funds did not derive from the project.

EB-5 investments may be made in installments, but the issue will be has the investor "invested" or is the investor "in the process of investing" the required amount of capital? In other words, if each investor makes 10-20 installments totaling $1 million dollars, then the investor might not be able to file the I-526 petition unless and until all of the installments have been completed. An alternative might be to have the investor place the funds in escrow, where the funds will be released automatically upon I-526 approval or other trigger. Either way, the full and required amount of investment funds must be at risk in order for the I-526 to be approvable.

While USCIS has allowed escrow accounts to be used and even some holding back of the investment funds until I-526 approval, that many installments may be a challenge. You could benefit from hiring experienced EB-5 counsel who manages a team of professionals to assist you.

Although risky, it is still possible for the EB-5 investor to invest in installments. First, there is no law against such approach. However, the opposite is also true. Current law gives USCIS discretion to interpret whether at I-526 or I-829, the full amount of capital investment is required. USCIS has stated that a mere intent to invest does not suffice for EB-5 purposes. Investor must actually have committed the capital to the new commercial enterprise. As to whether the full investment should occur at the I-526 stage, there is just no black and white USCIS guidance. This seems to be a unique direct investment problem, as almost all regional centers now require full investment at the I-526 stage.

The full amount of investment funds must be received prior to filing the removal of conditions. However you may be receiving RFE''s regarding the procedure. It is not a standard procedure and therefore may prompt questions from USCIS, causing delays in investor approval.

The full investment amount ($500,000 or $1 million) needs to be paid in capital before the I-526 is filed.

You may be able to do that; however, you do need to show that the funds are available for investment. The entire amount needs to invested prior to the second anniversary and before you apply for the removal of the conditions.

Needs to be complete and invested in the commercial enterprise when the I-526 is filed to have the best chance.