I am an Indian national and I want to apply for EB-5. I know that Indians are subject to the backlog, so I want to start the process as soon as possible. The problem is that I do not have access to the required $500,000 currently. I will have to invest $100,000 first, then wait a couple of months until I get enough money to make up the rest. Do you think it is a good idea to file the I-526 now since it will give me an earlier priority date?
Although regulations do provide being "in the process of investing," it is not a good idea to file an I-526 petition unless you have irrevocably committed the full amount either through putting funds into an escrow account until the I-526 is approved or directly invested in the new commercial enterprise. With a direct EB-5 case, it is possible to structure investment in phases with either a promissory note or escrow account. It is highly unlikely that you will find a reputable EB-5 regional center that will allow you to subscribe into a project and file the I-526 petition without having fully invested the requisite amount. Currently, regional center program is under a short extension and hopefully will be extended after Feb. 15.
While the regulations say you can be "in the process of investing," USCIS has interpreted that to allow for escrow arrangements, but all funds are out of the investor's possession at the time of filing. Get the remainder of the funds before filing the I-526. Plus, I cannot think of a regional center project that would accept anything less than $500,000.
To file an EB-5 petition you will need to invest the entire minimum amount, which is currently $500,000.
No, that is not a good idea. The law requires that you have invested, or be in the process of investing, the full amount of capital. This means that you should fully commit the required amount of capital to the new commercial enterprise prior to filing your I-526 petition.
Although it is not done frequently, you may invest what you have and then put a promissory note for the remainder with date certain. The agreement with the project/business in which you are making the investment must show that the investment will be made in increments. If you are filing through a regional center, most of them will not let you file until you are fully funded.
The full requisite minimum capital (i.e., $500,000 if the job-creating entity is located in a targeted employment area (TEA) or $1 million if it is not located in a TEA) must be invested/at-risk before you can file the I-526 petition.
No, there is a danger it will be denied.
You do not have to put in all $500,000 before you file. Technically, you have two years from when your EB-5 petition is approved to invest all the money and hire the required 10 new workers. We recommend that our clients put in as much as they can up front, file the case, and show where the rest of the money will come from.
The regulations/policy memo explicitly allow an investor to file an I-526 petition with a commitment to invest (provided that the full amount is invested within a reasonable period of time afterwards). Note that while this may be acceptable, it is highly likely that USCIS will issue an RFE/NOID demanding evidence that the full amount was then actually invested (otherwise it may be denied). Speak to your project to see if they are willing to accept partial funding.
You can do this with a direct EB-5 and yes, in my opinion, it is a good idea.
Very good question. If you are planning to go with a regional center-sponsored investment approach rather than the direct investment approach, you will most likely need to invest all of the amount anyway. So, you should wait until you have the entire cash available to invest. This is because most, if not all, of the regional centers will not accept you to the fund until you have all the required funds in escrow. If you are planning to go the direct investment route, the first thing you need to check is whether you qualify for the reduced $ 500,000 investment to begin with by having your business be located in a targeted employment area (TEA) or rural area. In our experience, this is very hard to do and therefore, you would most likely need to invest $1 million. While the law provides the flexibility to be in the process of investing the required amount, in practice USCIS prefers the entire investment to be invested or at least be at-risk by being placed in escrow to be invested. Otherwise, you might have problems getting your I-526 approved. Given the fact that you believe you will be able to collect the required funds in a couple of months, you should probably wait until you have all the necessary funds before filing the I-526 application. At any rate, don't do this alone. You should certainly seek professional advice before proceeding.
I would not file without full investment.
Although the rules indicate you must be actively in the process of investing the required amount, it is safest to fully fund the investment prior to filing. However, we have been successful in cases where the funds existed but were just not immediately accessible, such as if they were in escrow on the sale of an asset where there was a signed contract and the funds were to be released within a short period of time. If the balance of the investment does not exist at the time of filing, as in future earnings, I would not take that case, as USCIS may take the position that the application was not approvable when filed. This may be a conservative approach but that is the way we prefer to practice. Seek experienced counsel.
No piecemeal investment is allowed in an EB-5 petition even if it is intended to gain an earlier priority date. The entire $500,000 must be invested when the I-526 is filed.
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