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How can I get my investment back when my I-526 is still pending?

It has been two years since I invested in an EB-5 project and my I-526 is still pending. I would like to withdraw my investment because I am now getting my green card through marriage. The regional center said they could not give me anything back yet. They said I had to wait for at least five years or until all other investors got their green cards. Is that true? I heard they are supposed to keep the money in escrow until the I-526 is approved. The owner is offering an alternative that if I sell my notes, I could get $250,000 back right away. Should I take that offer?

Answers

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    Barbara Suri

    Immigration Attorney
    Answered on

    Please review the contract that you signed with the regional center at the time of your investment.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You should have your attorney review your offering documentation to determine what your exit strategy is under the terms of the project's subscription agreement and limited partnership or LLC agreement that you signed when you chose to invest in the project. Many regional center projects have early funds release provisions under the escrow agreements currently since they are obligated to fulfill job requirements for EB-5 investors to be eligible for green cards and I-526 petition processing times are quite long these days. It is likely a bad idea to get a low buy-out option.

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    Anastasia White

    Immigration Attorney
    Answered on

    This is a very case-specific question, and the answer largely depends on the terms of agreements you signed with a regional center. You might have discussed these terms with your attorney prior to signing, or you have to carefully review them with your attorney now. As a side note, not all agreements provide for keeping funds in escrow until an I-526 approval; in some cases, it is until the I-526 filing.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You need to read or retain counsel to read the documents you signed when you invested to see what is possible.

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    Sally Amirghahari

    Immigration Attorney
    Answered on

    It all depends, because every regional center's project is different. Hence, I suggest first to review the terms under your subscription and partnership agreements with respect to early withdraw of your petition as well as return of your funds. Also, consult with an experienced attorney prior to accepting any offer. It is hard to say whether the $250,000 offer is reasonable or not! As indicated above, all the facts and terms of the agreements must be reviewed prior to any assessment of the offer. I have assisted clients withdrawing their I-526 petitions for different reasons and got their money back either entirely or partially. Matter of fact, we are currently withdrawing an I-526 petition on behalf of my client with a refund of 80% of the investment. However, as I said, every case is different!

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    It is important with EB-5 to understand that the investment for the most part is separate from the EB-5 application. Some regional centers will have a provision that if your application is denied your investment will be returned. The forgoing is generally the only contingent relationship. Two years is still within the normal processing time. Selling your interest at $250,000 amounts to a 50% discount. This is a large loss for you. I would recommend that before you make any decision you review your decision carefully with a qualified investment immigration attorney.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    This is not something you should be tackling on your own. You need to discuss this with a competent securities attorney and your immigration attorney. You also should read very carefully the terms you agreed to in the subscription agreement as well as the terms and conditions spelled out in the private placement memorandum which should have been part of your closing documents. It is incorrect that the regional center needs to keep your funds at escrow until I-526 approval. If they did that, how could they create the required minimum number of 10 full-time positions on your behalf? They most likely took your funds and lent them to the job-creating enterprise, commonly known as the JCE. Under the terms and conditions of this loan agreement, the JCE typically does not have to pay back the loan for at least five years. Therefore, if the regional center cannot be paid for that period they will not be able to pay you back unless they get the funds from their own resources. If you need to wait until all the other investors get their green cards, you could be waiting for another 15 to 20 years, provided that there are some Chinese investors in the pool. If you agreed to such a term in your subscription agreement, you would be well-advised to settle for half the amount and take their offer. Before you take their offer, though, make sure that you in fact have to wait for all other investors to get their green cards. Second, if you have agreed to such a condition, then make sure that being redeemed half of your investment by the regional center does not violate any other provision in the securities law. This is why you are well advised to seek counsel of a securities attorney. Best of luck!

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    Russell C Weigel, III

    Securities Attorney
    Answered on

    Whether and when you can get your investment back first depends on the terms of the subscription agreement, the operating agreement or the limited partnership agreement that you probably signed, assuming that there is no element of fraud in the way you were sold your investment. You should gather all of your documents and show them to your securities attorney to help him or her get you the answers you need.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    I'd have to look in the offering documents. Many will release funds from escrow as the I-526 is filed, but some still wait until I-526 approval. There should be provisions for early release of funds, which is more a matter of contract than of immigration. It may be that you signed off on all of this.

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    Hassan Elkhalil

    Immigration Attorney
    Answered on

    This is a specific case. You may want to consult with your attorney to discuss which is the best option for you considering your specific situation.

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    Charles Foster

    Immigration Attorney
    Answered on

    The terms and conditions of withdrawing your investment, which basically means withdrawing your EB-5 investor petition on Form I-526, depends upon the terms and conditions at the time you entered into an agreement to invest in a particular regional center project. This would be set forth in the private placement memorandum and other documentation. Whether or not you should accept $250,000 now would depend, again, upon those terms and conditions. Generally, you should accept same, provided that you'll still have a right to obtain the $250,000 balance at the appropriate time.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Unfortunately, the conditions under which you can withdraw your investment are dependent on the agreement you signed with the regional center. In most cases, you cannot withdraw the funds unless you find a buyer for your shares or investment, etc. You should work with an attorney that can assess your exit strategy.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You have to look at the terms of the subscription agreement you signed and also the terms of the escrow agreement. Most escrow agreements have early-release provisions and most subscription agreements require the money to be invested and "at-risk" for at least five or six years.

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