Assuming you have more than one investor investing EB-5 capital into a troubled business, it must qualify as a troubled business at the time each investor's I-526 petition is filed. There is no express authority for this, but there is nothing in the law, policy memo, or regulations that would grandfather or freeze the troubled business as such when the first investor makes a qualifying investment. Each I-526 petition must be approvable on its own merits when filed. An analogous idea is that of TEA (Targeted Employment Area) status. A regional center with 50 investors must prove that the new commercial enterprise will be principally doing business in a TEA for each investor's I-526 petition.
If a project has been approved as an EB-5 project and recognized as a troubled business, does this troubled business have an effective term/period? The further question is, will USCIS determine if the application is qualified as a troubled business on every I-526 application separately? Or once the FIRST investor has met the requirements, do the rest of investors not need to provide the corresponding supporting documents anymore, even if the company is no longer troubled when they file the I-526?
Each investor must show that it is a troubled business. The regulations are not clear and very few, if any, lawyers have had success with this.
John J DowneyAnswered on
As far as I can determine, once the entity is filed as a "troubled business" with USCIS then it keeps that designation. I assume this is not under a regional center designation. Therefore, I believe that each succeeding investor need not prove that it is still troubled. You may wish to send the question to the EB-5 office at USCIS for a ruling.