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Can regional centers redeploy EB-5 money without the consent of investors?

I am a Chinese EB-5 investor. The loan the regional center lent to the project was originally set to mature in 2020. Today I received a message from the regional center saying the original loan was repaid already and my investment money has already been redeployed to ensure that it is at-risk while I am waiting for my priority date to become current. As I did not receive any notice in advance, I am wondering if the manager has the sole discretion to redeploy the fund without consent from the investors. Are they violating any rules? The new loan is set to mature in 2021. Can they deploy the money again at that point?

Answers

  • Avatar

    Julia Roussinova

    Immigration Attorney
    Answered on

    Review your original offering documentation with the RC project. If such redeployment was spelled out and you agreed by executing documents, then it should be authorized.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    That would depend on your agreed terms with the regional center. These details would be disclosed on the PPM and the subscription agreement that you signed.

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    Charles Foster

    Immigration Attorney
    Answered on

    As a practical matter, a regional center can re-deploy your EB-5 investment without the consent of the investors, as evidenced by the fact that, apparently, your funds have already been re-deployed. Also, as a practical matter, this is in the interest of the investor who wishes to continue to maintain his eligibility for both approval of his EB-5 petition on Form I-526, as well as his application for an immigrant visa in order to achieve lawful permanent residency. You should also review the terms and conditions set forth in the documentation, including the private placement memorandum at the time you made your investment.Yes, depending upon the need to maintain your eligibility and the terms of conditions of your investment, your funds may be re-deployed once more.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    It would depend what was in the original documents. If they had fully disclosed in the original PPM and you approved it initially, then it could be authorized.

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    Charles Kaufman

    Securities Attorney
    Answered on

    If the regional center is the manager or general partner of the fund in which you invested, it may have the right to redeploy EB-5 funds without the investors? consent. You or your attorney will need to examine the organizing documents of the fund to see what rights an investor has in this situation. You should also examine the offering documents you received at the time of investment. Usually investors receive a private placement memorandum to see if they made any commitments about redeployment. USCIS has published a policy on when and how EB-5 Funds may be reinvested after the original project has been completed. Generally, the funds must be invested or reinvested at risk until an investor is at the end of the conditional permanent residency period. Therefore, if the regional center has the right to reinvest in the new loan now, it likely also has the right to reinvest when the loan matures if the EB-5 investors have not yet completed the immigration process. While reinvestment, in general, benefits the EB-5 investors because it preserves their immigration status, when you agreed to invest in the original project you did not have an opportunity to review and understand this new and different use of your invested money, its risks, its prospects for profits and success, and whether the regional center has any conflict of interest in the new investment. That is why it is important to understand whether the organizing documents you signed at the time of your original investment gave the regional center the power to make this material change on its own, or gave investors a right to vote on it.

  • Avatar

    Lynne Feldman

    Immigration Attorney
    Answered on

    You need to review the documents you signed with that regional center.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Generally, a regional center cannot redeploy EB-5 money without the consent of investors. In your case, the action of the regional center should be discussed with your attorney, as it appears there is no indication that your prior consent was never obtained. This type of action by the regional center should draw serious legal scrutiny and perhaps legal action.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    There is no blanket right that the regional center could have to redeploy your funds as they see fit. I am almost confident that what they can and cannot do is spelled out clearly in the PPM and the subscription agreement that you signed. Unfortunately, you are not alone on this. Many investors simply sign the subscription agreement without clearly understanding what rights they have and what rights they have given to the users of their funds - that is, the developers through the regional center. That is why it is imperative to seek the counsel of experts like licensed broker-dealers, securities attorneys and immigration attorneys before investing in EB-5-related investments. Frankly, before making any kind of investment, investors should seek the guidance of the experts in the field. The law requires your funds to be at-risk during the sustainment period, which is defined to be the two-year conditional card period. Once you are ready to file the I-829, technically the regional center should be able to redeem your funds rather than reinvest. But, if they don't have to, chances are they will continue to hold on to your funds and use them in their projects until your conditions are removed and you apply for redemption of your capital. They would be justified doing that as long as they are not going against what was agreed upon through the offering documents.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Redeployment is a fairly new concept that USCIS still has not really clarified. It will depend on how your offering documents set forth their redeployment procedures. I would have to review the PPM and other documents.

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    Phuong Le

    Immigration Attorney
    Answered on

    Check the NCE's limited partnership/operating agreement. That provision may have been listed there all along, but you weren't aware. It'll outline the notice/consent requirements for redeployment of EB-5 funds.

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    Stephanie Lee

    Immigration Attorney
    Answered on

    I'd like to review your PPM and subscription agreement to check if the manager has the sole discretion or if the consent from the investors required.

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