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What if USCIS denies my I-526 application but the investment was already made?

According to USCIS, the requirement for I-526 is "the investment is at risk." Does that mean, for individual project, I have to invest the money first before filing the I-526 application? But in that way, what if USCIS denies the application? In that way, the business will not be setup yet.

Answers

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    Reza Rahbaran

    Immigration Attorney
    Answered on

    Typically, the investment amount is placed in an escrow account and is contingent on approval of I-526. However, please note that the regional center''s administrative fees may not be refunded.

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    Shahzad Q Qadri

    RC Creator
    Answered on

    In most cases money is put into escrow, if the I-526 is denied the money is returned to the investor.

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    Aleksandr Troyb

    Immigration Attorney
    Answered on

    You may be able to use an escrow agent who will hold funds subject to the approval of your petition. In other words, the funds will be invested only if your petition is approved. If it is not, the money would be returned to you. Having said that, you need to be very careful in crafting the escrow agreement so that it is acceptable for immigration purposes, while also protecting your investment. I would advise you to speak with your immigration attorney before you make any investment.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Many regional centers have an escrow agreement which provides for the return of the investment if the I-526 is denied minus an administrative fee.

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    Jeffrey E Campion

    Immigration Attorney
    Answered on

    The "at risk" requirement requires that the money be committed or if the investor be in the process of investing the funds. But, there are some exceptions to the rule. CIS allows the investor to put the money in escrow subject to the approval of the I-526. If the I-526 is not approved, the money could then be returned to the investor. I trust this clarifies the at risk issue.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You could also place the money in an escrow account with release conditioned on approval. Some projects/regional centers will request use of the funds before I-526 approval. Either way, a reputable regional center or project should have refund mechanisms in place in the event of denial. Reviewing the project or regional center for these procedures is very important.

  • Avatar

    Jinhee Wilde

    Immigration Attorney
    Answered on

    This is what we call the chicken or the egg problem. In a direct investment into an individual business, it may be hard for you not to make the full investment and show that business is set up and is on track to create jobs necessary for EB-5 case. However, if the business documents are not sufficient to show that I-526 is approvable, then the petition could be denied and your investment that you already made could be lost, as the business already could have been using the investment funds to operate the business that was established. With a reputable regional center that pools the money from multiple investors, there is usually a caveat to return the investment funds if I-526 gets denied, but that may be difficult for small, individual business. This is the reason why you need to be very careful in choosing the investment vehicle upon which you hang your immigrant benefits.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    Discuss with your attorney and financial adviser on finding a regional center that will offer to refund your investment and administration fee if your I-526 is denied. This is commonly available.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    You can put your investment funds in escrow pending the approval of the I-526. If the I-526 is denied, the funds are returned to you.

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    Philip H Teplen

    Immigration Attorney
    Answered on

    You have to be in the process of investing in order to apply. I will be happy to further explain.

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    Ed Beshara

    Immigration Attorney
    Answered on

    To file the I-526 petition, the investment funds may be held in escrow until the I-526 petition is approved. The immigration rules state the investor may have already invested or be in the process of investing.

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