On June 14, 2017, the United States Citizenship and Immigration Service (USCIS) released a revised version of its Policy Manual with edits made to the EB-5 Immigrant Investor section (https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume6-PartG.html). The focus is on clarifying the definition of “sustainment” of EB-5 investment. This is of particular importance to Mainland Chinese EB-5 investors who face a very extended time period for the complete EB-5 process due to the visa backlog
The following is a brief summary and commentary on the changes:
1.Definition of “Period of Sustainment”
While EB-5 investors must sustain their investment in an entity that uses the funds to create at least 10 full-time jobs per investor, the investment must also be maintained for the 2 years of conditional permanent residency. In other words, the investment must be sustained exactly from the date that an EB-5 investor begins conditional permanent residency to 2 years later (the date that the investor’s Form I-829 petition is due). The clarification made by USCIS regarding the “period of sustainment” appears to allow repayment to investors can be made as soon as the 2-year conditional period of residency is over, so long as the job creation requirements have also been met.
In the event that a project has completed its plans to fulfill EB-5 job creation requirements but investors still need to fulfill the period of sustained investment (as explained in point 1 above), a project/Job Creating Entity (JCE) may return the EB-5 funds to the New Commercial Enterprise (NCE) to be redeployed into another at-risk venture that falls within the scope of the NCE’s business. I-526 petitions may still be pending adjudication at this point, investors may still be waiting for an EB-5 visa number to become available, and/or conditional residency may not yet have started or finished.
Unfortunately, USCIS has left a lot of ambiguity as to how redeployment is to be accomplished in actual EB-5 practice. We will have to see how USCIS adjudicates projects that didn’t include plans for redeployment in the original offering documents, or have redeployment plans which include mutual funds of publicly traded stocks, or how much detail needs to be included in redeployment plans (to avoid material change).
3.Effect of Regional Center Terminations on EB-5 Petitions
If RC termination happens before conditional permanent residency, it likely will be a material change. If afterwards, the investor may still be able to file an I-829 petition.
For I-526 petitioners: If a regional center is terminated prior to the start of an investor’s conditional residence, the I-526 petition will be denied or revoked based upon material change of the regional center. This affects those investors who received I-526 approval but were still waiting for their EB-5 visa.
For I-829 petitioners: If a regional center is terminated after the start of an investor’s conditional residence, the investor may continue their EB-5 process and file an I-829 petition based upon jobs created by the project.
These latest updates to the USCIS Policy Manual are important to understand and will most likely help to improve the EB-5 Program in the long-run. At present though, we must hope for more clarity to come through USCIS’ adjudications of cases in the near future.
For more information or answers to your specific circumstances, please contact our experienced EB-5 team.
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