IMMIGRATION LAWYERS TOOLBOX
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Timing for the Return of EB-5 Investment –
Contractual Obligation (vs) Changed Immigration Policy By Evelyn Hahn, Esq.
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While the updated Policy Manual tremendously helped the entire EB-5 industry move forward with the EB-5 program with much greater clarity, it still raises a question as to whether the investors who signed their offering documents prior to June 2017 before USCIS updated its Policy Manual, can also request for a return of EB-5 capital after they meet the “Sustainment Period” requirement. These investors
2) In case the EB-5 investors made an investment prior to June 2017 and have now met the sustainment period requirement by maintaining their conditional resident status by filing their Form I-829, it is important to carefully review the terms of the offering documents and other related documents signed at the time of the investments were made, especially the provision pertaining to the exit strategy, dealing with the return of investments. Such documents include, but not limited to: the Private
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1) The EB-5 investors are still contractually obligated to abide by the terms of the EB-5 offering documents they signed initially, regardless of the updated changes in the Immigration Policy;
ISSUE NO.
However, in June 2017, USCIS finally updated its Policy Manual to clarify that an EB-5 investor must sustain his/ her investment “at risk” throughout the 2-year period of conditional permanent residence (the “Sustainment Period”) to be eligible for removal of conditions on his/her permanent resident status. This means that the EB-5 projects can now safely return the EB-5 capital to the investors upon “filing” of the Form I-829, instead of waiting until the Form I-829 is finally adjudicated.
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evelynh@hirson.com
must still consider the following additional factors before they make a final decision on this issue:
ILT MAGAZINE
Evelyn Hahn, Esq.
ne of the requirements of the EB-5 Investment Program is that the EB-5 investment be sustained at-risk in the new commercial enterprise (“NCE”). Prior to June 2017, it was not clear as to what this sustainment requirement exactly means as there was no mention in the statute or the regulations that the investment must be maintained for certain period of time. As the most conservative approach, EB-5 projects used to indicate in the offering documents that the NCE would issue capital repayments to investors only upon final adjudication of I-829 Petition to Remove Conditions on Permanent Resident status (the “Form I-829”).
