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What investment vehicles are considered “at risk” by USCIS?

Our project is completed and we would like to sell it as the market is high at the moment. We would need to redeploy the capital as not all investors are at the I-829 stage. We do not have another project lined up at this point. What other investments could we deploy the investors’ capital into that would not jeopardize the "at risk" requirement?

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    Ed Beshara

    Immigration Attorney
    Answered on

    Your EB-5 Immigration attorney can advise you of redeployment products that are available. The goal is to maintain the investment funds at risk and then have the funds returned when the I-829 is approved.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    All investments in any EB-5 project is considered as "at risk" investment. Also, regardless of what stage each investor is in the I-829 processing, redeployment of investment money is not advisable for a host of reasons. First, look at the terms of your subscription agreement to determine whether you can redeploy or not. Second, look at the exit strategies or terms of the investment. Third, confirm if there is any express redeployment clause. Beware, just because there is no specific prohibition does not mean it is permitted. Advisedly, examine all these issues along with other matters with an attorney prior to putting your plan into operation.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    This is a question that has to be answered on a case-by-case basis. Redeployment is a relatively new concept and even the USCIS has not been very clear on what is acceptable or not (and what is considered a "reasonable period of time" for the redeployment to happen). The best thing to do would be to retain an experienced EB-5 immigration attorney who can go over the specifics of your situation.

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    Charles Foster

    Immigration Attorney
    Answered on

    Other investments that you could deploy the capital of the investor into that would not jeopardize the "at risk" requirements would be other projects, provided that at the time the I-829 stage is complete, you will be able to honor your other commitments with respect to the return of capital.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    USCIS stated that the funds must be redeployed in a manner related to engagement in commerce. The USCIS Policy Manual states that the redeployment must be within the scope of the NCE business and gives one example of an NCE that makes an initial investment in a construction loan for a multi-family property, and states that the New Commercial Enterprise may make reinvestments in one or more similar loans. In addition, the USCIS states that an NCE may invest in new issue municipal bonds for infrastructure if those investments are within the scope of the NCE business. It also appears the partnership agreement of the NCE or operating agreement must authorize the NCE to make an investment or reinvestment that is similar in some respect to the reinvestment made by the NCE. Note that the reinvestment does not have to include job creation where the jobs have been created and it does not appear the that the reinvestment is in the same industry or geographic location as the original investment. This is a highly evolving and relatively unclear issue so we are advising that investors pursue a cautious approach although it does appear that some applicants, whose applications are delayed because of the waiting line, are also being placed in an unduly harsh position because of the requirements. The important aspect to note is that as long as the investor has obtained conditional resident status, a redeployment that was deemed to be a material change would not adversely affect the investor. There are other critical issues and be sure the investors are advised in advance of the reinvestment as to how their investment funds will be redeployed.

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