What happens to EB-5 direct investment funds during the China backlog delay?

Generally, if the underlying I-526 petition is being handled by a regional center, the investment fund is likely to be kept in an escrow account. In most cases, the terms of agreement between both the investor and the regional center would provide that the money cannot be accessed by both parties until the I-526 is approved.

Unfortunately, the current immigrant visa backlog for China mainland nationals is not specially addressed under the current law. To that end, your EB-5 capital must continue to be irrevocably committed to job creation purposes and maintained until your I-829 petition is adjudicated, unless the law is amended.

Given the backlog delay for Chinese investors, the invested funds may have to be redeployed or reinvested should the project in which the EB-5 investor invested be in a position after an appropriate number of years to repay the loan. In that case, the project or regional center would have to redeploy the funds and keep them at risk up until the time the petition to remove conditional status on Form I-829 has been approved.

The backlog in visa numbers for Chinese nationals in the EB-5 category only affects the final step in the "green card" processing, after the I-526 immigrant investor petition is approved/adjudicated. Those affected by the backlog need to wait until their priority date is current before they can file their last step in processing (i.e., adjustment of status or if living abroad - immigrant visa petition). Once funds are invested, the funds must remain/committed in the invested operation. These funds should no longer be accessible for the personal use of the investor during this time or anytime after the investment, and the business must be operational/maintained, etc.

The EB-5 program needs to be revised to accommodate the extra delay caused by the Chinese waiting line. Presently there is no option to allow Chinese investors a special dispensation on account of the extra delay. The money has to remain irrevocably committed to job creation until adjudication of the I-829.

The visa backlog affects the investor's ability to obtain the actual EB-5 visa to enter the United States. The business can continue to operate during this time.