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When does the total EB-5 investment need to be made?

I have received different answers to this question. When does the total EB-5 investment need to be completed? My plan is to start with $500,000 and invest the remaining $500,000 before the end of the two-year conditional residency. Why do some resources say the full investment must be completed before the I-526 is filed, but others say it just has to be done before the I-829 is filed?

Answers

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The EB-5 law says that the investor must have invested, or be in the processing of investing, the required amount of capital. In most cases, however, the full amount of capital is invested and placed at risk prior to the I-526 filing. Since your new commercial enterprise does not appear to be in a TEA, the full amount of capital, $1 million, must be at risk (either invested or contractually and legally committed to be invested, like in an escrow account) at the time your I-526 is filed. It is just too speculative to say I "plan" to invest another $500,000 before the end of the two-year conditional period without a very specific and credible timeline. That capital must be identified and at risk for you to be considered in the process of investing.

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    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 the I-526 petition. This could be achieved 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. It is possible to use a legal mechanism, such as placing the invested capital into an escrow account established by a LLC or other business entity, pending I-526 approval. This would generally not only irrevocably commit the invested funds to the business entity, but would also give you some assurance that, in the event the I-526 petition was denied, your invested capital would be returned.

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    Ed Beshara

    Immigration Attorney
    Answered on

    The required investment amount of $1 million (or $500,000 in a TEA or rural area) has to be in the escrow account of the EB-5 project before the filing of the I-526 petition.

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    John J Downey

    Immigration Attorney
    Answered on

    The spacing of the investment is directly related to the business plan that you submit. If it makes good business sense to space out your payments then it will be accepted. You need not have the full amount invested before filing the I-526. However, it should be invested in the time span to create the necessary jobs.

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    Robert Lee

    Immigration Attorney
    Answered on

    By law it states that the investment funds can be invested at the end if you can prove it. However, in actual practice this is difficult to prove. So generally, attorneys will advise clients to have all the investment funds deposited before I-526 submission. Do not be worried, this is a standard practice in the industry.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    All must be paid before the I-526 is filed.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    The regulation states that "[t]o show that the petitioner has invested or is actively in the process of investing the required amount of capital, the I-526 petition must be accompanied by evidence that the petitioner 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 to show that the petition is actively in the process of investing. The alien must show actual commitment of the required amount of capital." The literal reading of the regulation could lead to some stating that not all of the investment needs to be made as long as the investor is "in the process of investing." However, the reality of the USCIS adjudication is that if the full investment is not made at the time of the I-526 petition, you will have a hard time getting that approved.

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    Michael A Harris

    Immigration Attorney
    Answered on

    I am not sure what resources you are reading. But the EB-5 law says that your investment must be committed in full at the time of the filing of your I-526. Funds that are simply sitting in a bank account may not suffice. Some investments use an escrow arrangement, for example. But in any case, to assure that you are properly "investing" or "actively in the process of investing" as provided by EB-5 law, I suggest you consult a qualified immigration attorney. Great care will need to be taken to make sure that any of the legal mechanisms you choose to use are proper. For example, promissory notes or debt instruments may be one way to establish a schedule of payments by you, if the notes are properly secured by your personal assets. Hence, since using debt instruments can be very complex, it is for this reason why the easiest method may be fully investing cash by the time you file your I-526.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You can find a project in a Targeted Employment Area or rural area and only have to invest $500,000. Generally, the entire investment amount should be in the project's operating account or an escrow account before filing the I-526 petition.

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