Rumors are circulating in the EB-5 community that some I-526 petitions are being rejected because investors in regional center projects failed to pay their remaining committed investment amounts after making only partial payments by the time their petitions were reviewed.
U.S. immigration attorney Kate Kalmykov from Greenberg Traurig’s said the U.S. Citizenship and Immigration Services (USCIS) has been issuing these rejections because these partial investment petitions were not “approvable when filed,” according to her blog.
“The investor must have either fully invested the required capital or be in the process of irrevocably committing the funds for immediate use in the job-creating enterprise,” she explains.
The term “irrevocably” means that the funds must be on their way from the New Commercial Enterprise (NCE), which manages the capital, to the job-creating entity (JCE) account to be used according to the EB-5 project’s business plan. Therefore, the USCIS expects that the pending installment is fully committed, even if it has not yet reached the JCE.
If an EB-5 investor is only holding the funds and has not taken steps to process the remaining payment, the petition is not considered “approvable.”
The heart of the issue is the delay in paying the rest of the money, not the use of partial payment per se.
EB-5 attorney Robert Divine from Baker Donelson said he has also heard about these denials and that the best option is to make the whole payment as early as possible in the EB-5 application process.
“The safest approach contributing capital after filing I-526E is not to do it,” he says.
Total payments occur when applicants pay the full investment amount, whether it $800,000 if it’s invested in an EB-5 project located in a Targeted Employment Area (TEA) or $1,050,000 if it’s everywhere else in the U.S. Meanwhile, partial investments involve an initial payment, with the remainder due at a later agreed-upon date.
How much time do EB-5 investors really have to make later payments in a partial investment?
The USCIS reportedly denied some partial EB-5 petitions because of the failure of these investors to make these payments and complete the full amount promptly while their petitions were processed.
Securities attorney Debbie Klis from Rimon explains that denials after only an initial installment underscore a long-standing rule that governs every EB-5 filing.
She adds that missing later installment deadlines—particularly those specified in the offering or investor agreements—often leads to the U.S. immigration agency “to conclude that the capital was neither fully invested nor sufficiently and irrevocably committed at the time of filing.”
Kalmykov says that the delay times seem to vary.
“We have seen a variety of responses, ranging from a few weeks to several months, depending on the stage of adjudication and the specific circumstances of the filing.”
For these petitions to have been compliant and approvable, the installments should have been “timely funded.”
However, what does “timely” mean in practical terms?
EB-5 attorneys agree that the most effective timing for partial investment is to have the pending portion in the process of being invested within six months of the initial payment.
Klis cautions that there is no USCIS‑mandated number of weeks or months to fund a second tranche.
“The dispositive question is not a calendar grace period but whether, as of the filing date, the investor’s remaining capital was already irrevocably committed and on a credible, near‑term path to be placed at risk and made available to the job‑creating entity (JCE),” she adds.
If the remaining contribution is documented by a promissory note in the applicaiton, USCIS will treat the note as capital only if the investor is personally and primarily liable, the note is adequately secured by the investor’s own assets with a perfected security interest, and nearly all amounts due are payable within two years without extension provisions.
“These features are the clearest way to show that an unpaid balance is nonetheless ‘invested or in the process of being invested’ on the filing date,” Klis says.
Kalmykov confirms the timeline for installment payments largely depends on whether the project falls under a rural, targeted employment area (TEA), or infrastructure priority set-aside — and, if the project’s Form I-956F has already been approved,
“In our practice, we’ve seen rural projects with approved I-956Fs receiving I-526E adjudications as quickly as two to six months after filing. In those cases, investors should be prepared for a very short window to make their second (or subsequent) installment payments. The same typically applies to infrastructure projects. For TEA projects, the process is generally somewhat longer, with adjudications currently trending around six to ten months post-filing.”
The attorney adds that, in the case of EB-5 projects that have filed but not yet received approval of their I-956F, they may offer investors “more flexibility to structure installment funding, since USCIS cannot adjudicate an investor’s I-526E until the I-956F is approved.”
Klis adds that the documentation provided in the application should support the figure of “actively in the process of investing.”
“Personal bank accounts are not enough,” Klis concludes. “Simply holding funds—even large balances—in a personal account does not show a committed, at‑risk investment. Transfers into an NCE account under the governing capital commitment terms, or entry into a qualified, secured promissory obligation, are the types of actions USCIS recognizes as “active” investing.
As USCIS requires far more than intent or preliminary steps, documentation should include evidence of:
- Actual commitment and business activity.
- Placement at risk and availability to the job‑creating activity.
- Escrow and contingencies.
How much should be paid in the first and second installments if they are approvable?
The EB-5 regulation does not specify a minimum amount of the first or second payment in a partial payment petition for a regional center investor before filing the I-526E form.
“The amount is typically determined by agreement between the regional center and the investor,” Kalmykov says.
However, she adds that I-526 submissions by regional center investors should include an installment agreement (or side letter) specifying the schedule for the remaining EB-5 funds to be contributed.
“As a best practice, investors should provide source-of-funds documentation, not only for the initial investment amount, but also for the future installments, demonstrating the lawful source and path of all funds that will be invested pursuant to the installment arrangement,” she says.
Divine adds that minimizing uncertainty regarding the pending payment will benefit the partial payment application.
“It’s by far the best practice to identify the specific sources that will fund the remaining payments and document them fully in your petition,” he says.
Klis insists that the partial payment’s installment schedule must be consistent with these requirements.
“A second installment due ‘months later’ can still be consistent with approvable‑when‑filed if the unpaid amount is covered by a qualifying, enforceable, and secured obligation that matures within the accepted near‑term horizon and is supported by corroborating evidence (for example, liquidation of assets in process),” she says.
Klis cautions against open‑ended, discretionary, or easily cancelable installment “plans,” or reliance on the future that leads to speculation.
Because USCIS does not work with a “lateness metric tied to these denials, the recent denials show the investor did not have a sufficiently binding, near‑term, and credible commitment in place at filing.
“Once a self‑imposed or offering‑document deadline passes without payment, it undercuts the claim that the capital was irrevocably committed when the petition was filed. In other words, the violation of the financing terms itself is probative of ineligibility at filing, irrespective of the length of the delay,” Klis says.
What other choice is there?
Besides paying on time, Divine explains loans could be an option, provided they also meet EB-5 visa requirements.
“Consider getting a loan for what you are missing if the lender (if not a proper bank) can show the sources of the loaned funds, just as you would need to if it were your capital,” he says. “For someone who must pursue partial payments, expect restrictions from the NCE, who needs to contribute all the capital timely to the JCE, and who wants to resolve any uncertainties with your capital with an early replacement.”
However, using a loan for EB-5 investments can lead to complications. There are reports that USCIS has rejected petitions when loans came from the NCE or regional center. According to Divine, this could explain the agency’s increased rejections of petitions involving late or undocumented partial investments.
“Antagonizing USCIS with NCE affiliate loans has spurred USCIS to take newly negative approaches to previously accepted practices, including partial payments, by saying that the later contribution of initially undocumented sources is a material change justifying petition denial,” he says.
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