When I invest $500,000 in a regional center project, will the agreement with the regional center specify the return of the capital employed? If not, what are the legal recourses available to get the entire (or partial) investment money back?
The securities offering documents you sign will address the exit strategy which describes the legal basis for a return of capital. Please remember your investment is 100% at risk with no rights of redemption, which is a guarantee for the return of capital.
The money has to be at-risk or losing or making money. So you need to study the investment carefully to ensure that the loan is adequately secured and the investment solid.
It should. If it does not, I wouldn't go with that project.
The investment must be at-risk for the EB-5 to work. To minimize you risk, you may want to invest in real estate.
Most EB-5 investments are structured as preferred equity that ranks above the common equity, but certainly not above senior, or any other subordinated debt. Therefore, to the best of my knowledge, you cannot force any regional center to return your capital on legal terms. That said, the private placement memorandum, as well as the other offering documents, explain in detail the expected capital return plans of the regional center either upon I-829 filing or upon I-829 approval. Generally, you are expected to notify them when you are ready to receive back your capital. If your capital is redeployed, they will refund the capital as soon as it is practical to do so, given the new investment terms. If it is still with the project you initially invested in, then they would pay you back either at the end of the loan term or after their typical permitted several one-year extensions of the loan. This is because your capital investment into the NCE (new commercial enterprise) is lent out for a term to the JCE (job-creating enterprise) which in turn either uses the funds directly in the project or lends them downstream to one or more subsidiaries that use the funds. If all of this sounds complicated, feel free to get in touch with us directly, and we will try to elaborate as best as we can.
Generally, it is expected that your subscription agreement will provide for the return of the investment fund. However, be on notice that the inclusion of such term does not mean your investment is guaranteed because an EB-5 investment is an investment at-risk, which means you can lose the entire investment. If the project you invested in does not fail, you are likely to receive investment just like all other investors in the project, but the amount you will receive depends on host of factors. Advisably, consult an EB-5 attorney before investing with any regional center to know your options and rights in your subscription agreement.
Each center is different. You and counsel need to read the fine print and ask these questions when you sign.
The terms and conditions for the return of your investment would be set forth in the private placement memorandum. Your funds must remain at-risk and fully invested until you file your petition to remove conditions on Form I-829.
The money must be at-risk or the immigration service will not approve your EB-5 case. The documents you sign with the regional center specify how the money is to be returned. You must leave the money at-risk until your have successfully removed the conditions on your permanent residence, which you file for after two years of having your conditional green card. The total time you have to leave the money in the project (until the immigration service approves the removal of your conditions) is usually about seven to eight years.
Each center and project is different, so you must read the agreement thoroughly. There are no standard answers from place to place.
There should be an exit strategy discussed and in writing in the agreement prior to signing. Those provisions should cover recourses, if any.
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