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How can my money be considered "at risk" during the I-829 process?

I talked to my regional center and asked them what they are going to do with the $500,000 capital investment if my I-829 is pending while this capital is due and needs to be given back to investors. Based on my knowledge, the $500,000 has to be "at risk" when USCIS is processing my I-829. I asked my regional center whether this money should be re-invested into another project to make sure my I-829 can be approved, and they said the money will be on hold in an account and it would be illegal to re-invest it into another project. According to them, the money would be saved in a certain account and returned to me once my I-829 is approved, and as long as the money has not been returned to investors, it will be considered as at risk. Is that true?

Answers

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    Charles Foster

    Immigration Attorney
    Answered on

    The $500,000 has to be "at-risk" throughout the process, including at the time that the I-829 petition is filed to remove conditions. If the funds are simply held in an interest-bearing account, then USCIS could find that the funds are not "at-risk." In fact, it is not illegal to re-invest into another project and there should have been such a provision in your private placement memorandum. If in doubt, you could always get written consent to your funds being reinvested in an appropriate manner that would protect your interests.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    General rule is EB-5 funds must be at-risk up until you file I-829. Many regional centers recommend to keep the funds invested until after I-829 is approved. However, review the terms of your offering documents regarding your exit strategy as an investor.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Generally, the USCIS has affirmed as part of its guidelines that the at-risk requirement applies and remains all the way through the I-829 process.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The money only has to be at-risk up to the filing of the I-829.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Normally funds are not returned to the investor until after the I-829 is approved. Redeployment of the funds in another project is a separate issue.

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    Marisa Casablanca

    Immigration Attorney
    Answered on

    According to the memorandum published in last year, in order to consider for the investment to be at-risk, it only needs to be invested during the two years of conditional residency. That means that by the time you are filing your I-829 (two years after your CPR), you can have the funds returned to you.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    I am not sure if it is "illegal" to invest it into another project, but since USCIS announced that redeployment of EB-5 funds would be allowed, they have provided little further guidance on what that can be in the form of. Reinvestment into another project was contemplated, but no one was sure if that had to also meet EB-5 requirements or not. An alternative at-risk investment account was also contemplated by the new policy. Alternatively, some attorneys also consider the filing of the I-829 the end of the at-risk period and allow for repayment! I realize that I haven't given you a real answer here, but a thorough look at the project policies and the USCIS redeployment policies would help here.

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