How can EB-5 investors receive their investment return earlier?

The issue of when you can get your investment depends largely on the subscription agreement between the investors and the regional center (RC). However, if circumstances warrant it, some RCs in agreement with the investors may make early disbursement. Advisably, if as an investor you prefer an early return of the investment fund, you should either ask or negotiate such a subscription agreement; otherwise you have to operate under the terms in existence when you entered your agreement.

You may be able to negotiate the terms with the regional center regarding the timing of the return of your investment, but in most cases, early return is not possible to ensure that all EB-5 investors get their I-829 approved.

This should have been covered in your contract with the regional center.

Generally, regional centers will not have inconsistent terms for certain investors and the same rules will apply to all EB-5 investors in a particular project. You will need to review the terms of private placement memorandum and limited partnership agreement or LLC agreement along with the terms of any loan agreement, if applicable, to determine the exit strategy and when EB-5 capital may be returned. Investment must be sustained and at-risk throughout the conditional residency period.

As an EB-5 investor who is not subject to any backlog under the quota such as there is for Chinese nationals, you do not have to wait for the return of the investment to all others investors who may be required to wait longer. You should be able to obtain the return of your investment based the terms of your agreement with the Regional Center project and as set forth in the Private Placement Memorandum. There is normally a 5-year holding period, but the project will be able to return your funds per their agreement with you without having to wait and same should not be adversely impacted by the fact that certain investors will want their funds to stay fully employed up until the time they are able to file their Petition to Remove Conditions on Form I-829.

USCIS requires the investment to be "sustained" throughout the period of conditional residency. Some believe that means that as soon as you file the I-829, you can exit the investment. Others believe that you need to wait for the I-829 approval, and others still that all I-829s for the entire project need approval. Some of that is just between you and the project, but at the very earliest, you need to keep the money invested until you file the I-829.

Most regional center projects have a loan term of minimum 5 years extendable by 2 years. Under the current processing timeline, it is taking 5.5 to 6 years to get the conditions removed irrespective of the nationality. That said, regional center can choose to return funds to investors earlier than other. It is not mandatory to wait for everyone to get an I-829 approval.

The issue of sustainment of the investment is not clear as the redeployment rules are vague. However, the general rule is one can withdraw the investment after filing the I-829. In addition, there have to be consistent rules for all investors as one investor cannot necessarily be prejudiced by others so the operating agreements and subscriptions agreements must be carefully reviewed by an expert.

It is a question for the regional center, but I have not seen one doing so. They want to make sure all I-829 are approved.

Since there is no guarantee of payment allowed in the EB-5 investment, having such language will jeopardize your immigration benefits. However, most of the successful regional centers will have a caveat that the investment would be returned after I-829 is approved. This along with the loan agreement which will have a maturity date for repayment of the loan will give you an idea when the partnership will get the loan repaid, and if your I-829 is approved by that time, you could get your investment back.