+1-800-997-1228
Questions & Answers

What are the consequences of loan repayment prior to I-526 approval?

This question concerns projects that have already started (and jobs have been created), but with exit dates within 2-3 years, i.e. before I-526 approvals will be obtained. EB-5 funds are released upon submission of the I-526. If a project repaid the EB-5 loan prior to I-526 approval, what would the consequences be? Is a new I-526 filing required before funds can be redeployed to a new JCE? Or, if this is anticipated prior to creation of the EB-5 offering, should the business plan and other offering documents reflect the possibility of early repayment?

Answers

  • Avatar

    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Getting to this question in late July 2017, USCIS has provided some guidance on redeployment, which you should review with an EB-5 attorney. It may be possible to redeploy and maintain the at-risk requirements.

  • Avatar

    Charles Foster

    Immigration Attorney
    Answered on

    If the funds you invested that were loaned to the developer were repaid to you prior to the approval of your EB-5 petition on Form I-526, it could impact your eligibility to obtain your lawful permanent residency. Your funds must remain at risk throughout the process. Depending upon the structure of the investment, a new I-526 petition would not be required to be filed, but the funds would need to be redeployed in a new job creating entity or in some other manner that would meet the requirements of USCIS. Ideally, the business plan should contemplate the possibility that the funds will need to be reemployed and will explain how same would be structured in compliance with current law, procedures and practices.

  • Avatar

    Steffanie J Lewis

    Immigration Attorney
    Answered on

    Your investment must be at risk in a commercial NCE or JCE for two years following the investor entering the United States as a conditional permanent resident. That requirement must be proven when the investor files to remove the condition on the two year anniversary. The regional center is the issuer of the security representing your investment. You need to inquire of your regional center as to the method by which your investment will continue to be used and at risk by the NCE or JCE. Yes, the method should be included in the business plan, but many business plans were written prior to delayed entry resulting after the limit to visas for Chinese investors was reached.

  • Avatar

    BoBi Ahn

    Immigration Attorney
    Answered on

    At the time of filing the I-829 removal of conditional permanent residence, one of the evidence you are required to submit is "Evidence that the entrepreneur sustained the enterprise and the investment in that enterprise throughout the period of conditional permanent residence." If you are "paid out" or no longer maintain the investment, you may run into issues getting this approved.

  • Avatar

    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If USCIS is aware the loan is repaid prior to adjudication of the I-526, it will almost certainly result in the case being denied. The jobs have to not only be created, but they must continue and the investment must be "sustained." Material changes in the business plan and/or the economic report are not allowed prior to the approval of the petition. After approval, some change may be permissible. Some take the position that the money cannot be repaid until the I-829 is approved, while the more aggressive position is that it must be sustained only until filing of the I-829.

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.