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When are EB-5 investors allowed to get the investment money returned?

My family filed I-829 application in 2011 and it is still pending. We were advised that as long as we have put our investment in the regional center project during the first two and half years and generated 10 jobs, we would be able to request our money to be returned without affecting the adjudication results now. Does it mean that it is safe to get investments back while I-829 is still waiting to be adjudicated? Are there any rules that specify investment return policies for the EB-5 programs? Will the adjudication results of I-829 get affected if I request a return of investment before the I-829 application is adjudicated?

Answers

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The period for sustaining investment is the conditional period of two years. After that, the money may be returned if allowed by the subscription agreement or other document signed with the regional center. Average processing time for an I-829 is about two and half years, so you might want to follow up with your attorney on the pending I-829 (or hire an attorney if you do not already have one).

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    After the I-829 petition is filed, the USCIS allows for the return of the investment to the EB-5 investor. owever, a specific regional center may require that the investment be sustained for additional time.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    In case there is a request for additional evidence issued on the I-829 petition, it is best to leave the funds at-risk/invested.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    There is no hard and fast rules on the return of investment fund, particularly once an I-829 is filed. The reason for variety of approach is that individual agreements between investors and regional centers tend to contain different decisions such as redeployment, no distributions until the 1-829 is approved, etc. Therefore, in this case, check the terms and conditions of your agreement to determine when you can have your investment returned. If your agreement is silent on the timing issue, then a prompt discussion with the regional center should be undertaken as soon as possible to resolve the issue.

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    Barbara Suri

    Immigration Attorney
    Answered on

    The regulations require the investment to be "at-risk" to qualify for I-526 approval, but this does not seem to be a requirement for I-829 approval.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    Are you sure that you applied for the I-829 in 2011? It might have been the first step that is the I-526, which is the standard immigrant petition for EB-5 application. Eight years is a very long time for an I-829 to be pending. Something does not seem right here. That said, USCIS has revised its rules. It is no longer necessary to keep the funds at-risk any more beyond the sustainment period, defined as the conditional green card period. However, if your specific agreement with the regional center, documented in the subscription documents, mandates that your funds will only be eligible to be returned after I-829 adjudication then, I am afraid you might have to wait until then. Nevertheless, it is always a good idea to get in touch with the regional center and investigate your options. Good luck!

  • Avatar

    Charles Foster

    Immigration Attorney
    Answered on

    Yes, technically after filing your petition on Form I-829 to remove conditions, you could request return of your investment without affecting the adjudication results.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The money can be returned pursuant to the clear terms of the subscription agreement. USCIS ordinarily permits the money to be returned after the I-829 is filed.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Most regional centers will not consider a repayment until all I-829s have been approved for that project but read the project documents to see what the terms are.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    It appears your pending I-829 is outside the average processing times if it is pending since 2011. Have your immigration attorney place an inquiry with IPO regarding the status of the case. Review your project's offering documentation regarding the exit strategy as to when you can have your EB-5 funds returned and contact the regional center.

  • Avatar

    Belma Chinchoy

    Immigration Attorney
    Answered on

    Something is not right with the I-829 that has been pending for eight years. Should look into that. In general, the funds do not have to be invested during the I-829 pendency. However, you must review the contracts you signed with the RC.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    USCIS recently clarified that filing the I-829 ends the "at risk" requirement, but also the contract you have with the project may have its own procedures for repayment tied to approval of the I-829.

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    Daniel B Lundy

    Immigration Attorney
    Answered on

    According to the current USCIS policy, EB-5 investors are required to maintain their investment at risk in the new commercial enterprise for the full two years of conditional residency. That means that after the second anniversary of conditional residency, which should coincide with the expiration date of the conditional green card, an investor can receive a return of his or her capital. As a practical matter, if an investor were to receive a return of capital the day after the two years or very shortly thereafter, USCIS may question whether the investment was in good faith or if there was a preconceived intent to exit the investment as soon as possible after the two years. As long as there is no document agreeing or promising to return the money to the investor at any set point in time or upon any set event, such as reaching the end of the two year period, the investor should be fine.

  • Avatar

    Phuong Le

    Immigration Attorney
    Answered on

    Check with your project to see if you are eligible under the EB-5 loan agreement. Under EB-5 rules, you only have to maintain your "at-risk" status for the investment for the two-year conditional permanent residency period.

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