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What should we do if both the subscription agreement and the Memorandum are silent on the timing of repaying investment to investors after their I-829 are approved?

Our subscription agreement and the memorandum do not specify the timing of returning invested principal to investors. It only says in Cash Distribution section that "Our limited liability company agreement provides that cash available for distribution, other than liquidating distributions and special tax distributions to holders of our Common Units, will be distributed only in the sole discretion of our Managing Member. " First to each holder of Preferred Units; second to each holder of Preferred Units who has had his or her I-829 Petition finally adjudicated by the USCIS.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Your investment funds cannot be repaid while you are in the sustainment period. If the project has been completed as anticipated and it is time for the loan to be repaid (if a loan model) or the investors to be bought out (equity model) because this project has been sold or refinanced, the funds must be redeployed at risk for any investors who are still in the sustainment period. Whether you are still in the sustainment period or not, you need to speak with your immigration attorney and the developer regarding the timing of repayment of your investment funds.

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    Daniel B Lundy

    Immigration Attorney
    Answered on

    In order to avoid the possibility that USCIS would find an agreement to be a redemption agreement that converts the investment into a prohibited debt arrangement, most EB-5 investment agreements are silent on the timing of repayment. This is because of a USCIS policy that any investment agreement that contains a fixed time (or triggering event) or amount of repayment is a prohibited debt arrangement that prevents the investment from being at risk. We have argued for years that this policy makes no sense, but USCIS refuses to change it. It looks like your agreement was properly written as a limitation on distribution rather than a right to distribution at a certain time, but I cannot tell from what you have provided. In such cases, assuming money is available for repayment, the Manager or General Partner would usually make distributions of earnings to everyone, then distributions of principal to those eligible to receive it- in this case, an investor who has had his or her I-829 adjudicated by USCIS. Before that point, an investor is not eligible (under this agreement) to receive a return of capital. Unfortunately, I cannot tell what you mean by what to do about it, so I cannot answer that question. However, I hope this is helpful as background information.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    I recommend you immediately seek the services of an experienced securities attorney.

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    Belma Demirovic Chinchoy

    Immigration Attorney
    Answered on

    You should discuss with your legal team (EB-5 and securities attorneys) on appropriate policy and implementation steps.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    It appears the subscription agreement and the memorandum may be deficient. What did they tell you about the return of capital when you invested? You need to consult with a corporate or securities attorney to address your concern and you may also want to look into applicable corporate state law statutes and regulations and to determine your rights for repayment.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You should start with a conversation with them on their guidelines for payback. Ask who else has received their funds back, when, etc.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Advisably, you should contact an attorney to review your subscription agreement. Even in the clause you quoted, there are timing and payment issues with enough conditions precedent that could trigger exit actions and rights on your part. In any contract or subscription agreement for EB-5 projects, there are usually enough terms/clauses that provide for termination or exit.