How should investors arrange the timing of investment in EB-5?

Typically, you must have evidence that you have invested or are in the process of investing the requisite amount of capital into a target investment, and that the invested capital is at risk at the time of filing of I-526 petition. This could be achieved by properly drafted documents with supporting evidence. Evidence of mere intent to invest without the present commitment is not sufficient to show you are actively in the process of investing. It is possible to use a legal mechanism, such as placing the invested capital into an escrow account established by a LLC, pending visa issuance. This would generally not only irrevocably commit the invested funds to the LLC but would also give you some assurance that, in the event I-526 petition were denied, your invested capital would be returned. Given lengthy processing times, however, many regional centers no longer keep funds in escrow because they are required to develop projects.

Must be invested in full before I-526 is filed.

It is always best to make the full investment. If you make a partial investment be ready to prove the full investment amount has been made prior to adjudication in one to two years and make sure all the funds are identified and available, and that you merely waiting for currency authorization for example to make the full investment.

Generally, yup. At least into escrow. I know the rule says "invested or in the process of investing," but getting the entire amount into at least an escrow account is the most common procedure.

EB-5 investors are not required to have all the funds entirely invested prior to filing their EB-5 Petition on Form I-526. In fact, it is quite common for those funds to be in escrow. It depends upon the terms, as set forth in the private placement memorandum or the terms of the direct investment. Yes, the capital could be transferred after the EB-5 petition is filed, provided that it can be shown that the capital existed and was in the control of the investor, at the time the EB-5 petition on Form I-526 was filed.

The requisite minimum capital investment must be made/imminently made before I-526 is filed. You cannot invest part of the funds after the submission of I-526.

A portion of the investment must be at-risk before you file the I-526. You will arrange the time of the transfer with your immigration attorney. The timing of the transfer depends on the nature of your project or the investment.

It is best practice to invest all before filing the I-526.

The general rule is that the entire investment must be transferred before submitting the I-526 petition. Typically and depending on the terms of the subscription agreement, the entire investment fund will be deposited in an escrow account.

The language at the USCIS website is, "You must submit evidence that you have invested or are actively in the process of investing the required amount of capital." In practice, however, if you are going to pick a project to invest in through a regional center, most, if not all of them, will require you to invest the entire capital before they would admit you to the fund. To submit your I-526 petition, you need that fund acceptance letter. So, for all practical purposes, you will need all your capital invested before submitting the I-526 petition. That said, if you plan to go the direct investment route, you can certainly be in the process of investing, but you should still be very clear on the source of your funds to avoid an RFE or outright denial.

In a direct EB-5 situation, yes, the investment can be made over a period of time. It is advisable to have a plan of investment and sourcing of all funds at the time of I-526 submission. The full investment should be completed before I-526 adjudication. The phased-in investments may be affected by the new regulations going into effect on Nov. 21.

The capital does not have to all be paid prior to the filing of the I-526. The business plan should explain how it is to be paid and how jobs will be created as the payments are made. We have had many clients that did this successfully.

Theoretically, you need only show a commitment to invest at the time of I-526 filing. However, afterward you need to show that the entire amount was fully invested (in all likelihood you&#39ll receive a RFE or NOID requesting evidence of full investment). Ideally you will invest the entire amount before that time.