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Can investors reinvest the EB-5 capital in a non-regional center project in a redeployment situation?

I invested into an EB-5 project via a regional center and received my conditional green card in 2018. The project has completed in January of this year and the required jobs were created. The developer returned the EB-5 loan to the regional center. From what I understand, the money I invested needs to be kept "at risk" until the I-829 stage. The regional center is offering to reinvest the money in another one of their projects, but that would mean that the money will be locked in for another 5 years. They are willing to return the investment right away but warn me that this would result in my I-829 being denied. Does the investment need to be "at risk" until the I-829 application is submitted or until it is approved? Since my initial investment has already fulfilled the requirements of job creating, do I still have to re-invest in an EB-5 compliant regional center project or can I just take the money from the regional center and invest it myself in an investment of my choice?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    EB-5 funds must remain at-risk until the I-829 is filed.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes! Unfortunately, your investment must be "at-risk" until the petition to remove conditions on Form I-829 is filed. Or, at the very least and even more conservatively, until it's approved. Thus, you must re-deploy the funds in order that they continue to be "at-risk." Unfortunately, if your investment funds are refunded to you, in fact you could possibly run the risk of having your I-829 petition denied unless the funds are re-deployed by the entity in which you invested. You should seek to negotiate through the regional center, an arrangement whereby the funds could be refunded no sooner than the filing of your I-829 petition.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The investment must remain at-risk until the I-829 is filed.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    The law or the implementation of it by USCIS seems to suggest that the funds need to be "at-risk" and under the watch of the NCE who originally collected the funds. The fact that the jobs are already created and the JCE has already paid off the NCE does not seem to change the facts. The funds need to be at-risk by being reinvested by the NCE and not returned to the EB-5 investor before. In other words, every EB-5 investor is required to retain his or her investment capital "at-risk" in the NCE during the sustainment period defined as until such time as that EB-5 investor has been in the U.S. for two years in conditional resident status, commencing on the date the EB-5 investor entered the U.S. or obtained a change of status if the investor was already in the U.S. under a different visa. According to the amended Policy Manual on June 14, 2017, of USCIS, after the sustainment period concludes, even though the I-829 petition to remove conditions has not been adjudicated, investor capital can be returned. Bottom line is this: Yes, at the minimum the money needs to be at risk until I-829 filing stage. If the regional center is offering you a reinvestment option that would come due even way past your expected I-829 adjudication date, have a conversation with them to consider reinvesting your funds in a shorter term eligible alternative that you feel comfortable with.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    I-829 regulations require that your investment remain invested through the NCE until I-829 adjudication.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Redeployment while I-829 is pending, just as in this case, is highly debatable and at times controversial. In your situation, look at the terms governing the issue in your subscription agreement. On the proposal from the regional center to invest in another project which has nothing to do with your original investment and is unrelated to your pending I-829, do not accept it until you obtain legal advice. Therefore, discuss this with your attorney so as to ensure your rights under the agreement are protected.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    USCIS has only barely started to define redeployment procedures. The funds do need to be at-risk until at least the filing of the I-829. I would want to look at all of the terms of the new deployment to see if investors like you could early-release after filing or not.

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