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Can I file an I-526 application while transferring the investment fund to the U.S.?

I am planning to file my I-526 in a few weeks, and there is one thing that I worry about. I am taking the path of direct investment of $1 million without using TEA benefits. However, so far I only invested $681,000, and I have access to the rest of the investment in my home country. Government regulations make it really hard to transfer money from my country to the U.S. Every business day, I am transferring $5,000 to the U.S. As far as I am concerned, the investor can be in the process of investing while filing the I-526. My question is, am I in the process of investing in this case? If yes, should I still provide a promissory note, or is my situation different?

Answers

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    In my experience, being "in the process of investing" still requires the funds to be out of your possession.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    While regulations allow for an EB-5 investment to be in the process of investment at the time of I-526 filing, this must be properly documented and commitment of funds over specific schedule must be evidenced. You will likely receive a request for evidence or notice of intent to deny, at which point you will have to prove full amount committed to the EB-5 enterprise.

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    Phuong Le

    Immigration Attorney
    Answered on

    The regulations only require that you evidence a true commitment to invest at the time of filing. In reality, you can submit a filing based on partial investment (with explanation on when the remaining balance will be invested). I'd expect a RFE or NOID, though, at which point you'd have to prove the remaining amount was invested at that time.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    The minimum requisite capital ($1 million in your case) must be invested before the I-526 petition can be filed. Or the alternative would be to relocate your business to a TEA.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    You are welcome to continue the path you have taken, but I must say it is quite a dangerous one. It is true that the regulations state that you could be "in the process of investing," but in practice everyone I know who has applied has already committed the funds before filing the I-526 application. Currently, the criteria to qualify a region as TEA is quite liberal. Have you been working with an experienced immigration professional to advise you along the way? It is quite possible that the place you would like to set up your direct investment could be qualified as TEA.

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    Charles Foster

    Immigration Attorney
    Answered on

    Legally, you may file your direct EB-5 investor petition on Form I-526 prior to investing the full $1 million. Just for security, however, you might want to check to see if your project is located in a targeted employment area (TEA). As a practical matter, most EB-5 investors have not invested any funds at the time their I-526 petition is filed, as those funds are held in escrow. After you've obtained your conditional lawful permanent residency and you're required to file on Form I-829 your petition to remove conditions, you would certainly have to establish that you invested the full required amount, whether $1 million or $500,000.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    It is best to have all money invested in the project before filing.

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    Barbara Suri

    Immigration Attorney
    Answered on

    It is my opinion that you are not in the process of investing. All the criteria must be in place. Until then, anything could happen to prevent the transfer of the balance of the funds.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    While the regulations allow for one to be in the process of investing, it appears many cases are rejected if the full amount of capital is not committed as of the time of filing. Why don't you invest in a regional center with $500,000 designated?

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