When can I get my EB-5 investment back?

As USCIS policy requires investments to be "sustained," exiting the investment before the I-829 process is complete may not be an approvable practice. USCIS is apparently open to "redeploying" the funds to allow for the investment to continue to generate positive returns, but the actual practice of this is yet to be finalized.

The return of your investment is specific to the regional center and the investment agreement. You need to spend time reviewing and understanding the investment agreement in its entirety. Hiring an immigration attorney and an investment advisor is recommended. EB-5 is a complex program with many requirements.

What does your agreement say? That is where you will find your answer.

First, as with any investment, there is always a possibility of a total loss of your investment. EB-5 requires an "at risk" investment to qualify. Moreover, no regional center is allowed to guarantee the return of investors' funds. Likewise, lawful permanent resident status is not guaranteed. No one can ever guarantee the outcome of any visa application or petition, as this decision is up to United States Citizenship & Immigration Services (USCIS). You would have to see through the I-526 and I-829 approvals to have the conditions removed, and it is then and in accordance with the participation agreement/exit strategy that your investment return will come, if you actually do receive a return in terms of capital and/or interest or respective profit percent. Before deciding to move forward with the EB-5 program, secure independent legal counsel and carefully read and review everything: you must look at the equity portion of the investment, all internal costs and/or fees, the exit strategy, how the investment is structured to meet the return of original capital, and return on investment.

Your investment must be at risk through the period of conditional residency. Also, the determination as to when you are able to receive all or part of the investment back depends upon the success of the investment and the provisions in the offering documents, including the private placement memorandum.

Return of investment is usually dependent on the loan agreement between the regional center L.P. and the project. Usually there is a lock-in period of five years with a possible extension of one to two years. There is a good reason for this lock-in period. The funds need to remain invested for the approval of your I-829. Considering the current delays in the processing of applications, I do not foresee any investor receiving their funds prior to five years.

Current EB-5 regulations require EB-5 investment capital to be "at risk" and maintained in the new commercial enterprise until the I-829 period. Receiving return of investment principal before I-829 approval will significantly raise the chance of I-829 denial. However, return on investment (such as dividend/profit distribution) is permitted. Investor should still nevertheless proceed with caution.

One of the requirements for getting the I-829 approved is that your capital is still invested and at risk. Thus, if you get your investment back before the I-829 is approved, you are risking that application not being approved.

It is best to wait until the I-829 is approved. The investment must be sustained. USCIS should be issuing further guidance on this soon.

An approval would be in error if you have no investment at the time your application is approved.