If investors have met all other requirements for getting the investment funds back, can they request a refund after the submission of the I-829 form and before a decision is given? Will this influence their I-829 petition? Or do investors have to wait until a decision is given on the I-829s to get their funds back?
Your project's offering documentation governs your exit strategy and return of EB-5 capital. Consult the documents or your attorney for clarification. USCIS current policy is investors' obligation to sustain funds at-risk ends with I-829 filing. Conservative approach is to wait until the I-829 is approved.
USCIS clarified last year that the filing of the I-829 ends your obligation for a sustained investment, but your contract with the project (the subscription agreement) might say otherwise.
Generally, the investment must be sustained until the filing of the I-829. However this may be subject to the corporate documents which ordinarily defines the terms of when the funds can be refunded.
After the I-829 petition is filed, USCIS allows the foreign national investor to get his principal back. However, the signed agreements between the regional center and the foreign national investor may not allow this.
That ultimately depends on the EB-5 loan/investment terms between the NCE/JCE and the NCE's repayment provisions to its individual limited partners/members. Theoretically, you would legally be allowed to be repaid after you sustain the investment, but whether the NCE will allow you repayment at that stage is a whole different matter. Each project varies, so it is best to check with yours to be sure.
An investor can get his or her EB-5 investment funds back, based upon many criteria. Most importantly, whether or not the I-829 petition has been filed, but equally important, the terms and conditions of the investment as set forth in the initial private placement memorandum, as well as the economic viability of the investment project. Under certain conditions, the investor's funds could be returned prior to a decision being made on the I-829 petition.
We advise waiting until the I-829 is approved before getting their money back. You should consult your own lawyer.
USCIS has indicated that investors do not have to sustain their investment while the I-829 is pending. This policy is articulated in the Policy Manual.
You need to read the project documents for the regional center you are working with. Most do not even consider refunding funds until everyone in that project has an I-829 approval.
Technically speaking, according to USCIS Policy Manual, Chapter 5, where the removal of conditions is described, footnote 4, states as follows: The sustainment period is the investor's two years of conditional permanent resident status. USCIS reviews the investor's evidence to ensure sustainment of the investment for two years from the date the investor obtained conditional permanent residence. An investor does not need to maintain his or her investment beyond the sustainment period. Therefore, if the regional center agrees to pay your investment back at I-829 filing, you should have no issues from USCIS standpoint. Nevertheless, if the offering documents state that they do not have to pay until I-829 approval, you might need to wait. The answer to your question is, "Investors do not have to wait until I-829 approval." If the regional center agrees to pay after I-829 filing, the investor would not have an issue. That said, what ultimately the regional center will do would most likely be dictated by the offering documents that were signed at the time of the investment unless they were revised following USCIS' more accommodating stance on the subject.
As a condition precedent to EB-5 approval, the investment must be at-risk. The investment should not be structured so you are guaranteed to receive your money back at some point after you obtain your residency! If you are referring about selling your share or membership interest in a project, then I would wait until my I-820 is approved.
