I understand that USCIS has a specific definition for “at risk” with regard to the investment that is made to the JCE. However, what is USCIS’s definition for “at risk” with regards to redeployment? I am looking at two different projects and both regional centers have significantly different plans for redeployment. I want to make sure that both options will be compliant under USCIS guidelines.
The "at risk" redeployment of EB-5 capital is critical to your success under the EB-5 program. You will want to consult with an EB-5 immigration attorney to review the details of both clauses to ensure that they meet the redeployment criteria.
You should have the plans reviewed by competent counsel to make sure all aspects of the EB-5 program will be met.
It is advisable you should consult an EB5 attorney on issues of this nature. The details of each plan and the level of due diligence exercised in reviewing each project will help a great deal. Comparing two projects in redeployment situation is not particularly useful and advisable because each project's business plan, goals and eventual execution will be different.
The definition or requirement for "at risk" with regard to redeployment really is essentially the same as the initial investment. The funds must be redeployed in an active, not passive account. As long as both options involve an active investment that is at least theoretically at risk, they both should be compliant.
If the immigrant investor is guaranteed a return, or a rate of return on all or a portion of his or her capital, then the amount of any guaranteed return is not at risk. For the capital to be at risk there must be a risk of loss and a chance for gain. An arrangement under which funds have been contributed in exchange for an equity interest subject to a redemption agreement which provides that the investor may demand a return of some portion of his or her investment funds, including after obtaining conditional permanent resident status, is an impermissible debt arrangement, no different from the risk any business creditor incurs. Such funds do not constitute a qualifying contribution of capital and, because the redemption provides for a guaranteed return to the immigrant investor, the funds are similarly not at risk.
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