USCIS recently updated their Policy Manual (on June 14, 2017), and there two notable updates I’d like to touch on here.
USCIS requires all of an investor’s capital to remain “at risk” for a certain period of time. The new Policy Manual specifies exactly how long capital must remain “at risk” before it may be returned to the investor without jeopardizing their immigration process. USCIS defines this “Sustainment Period” as follows:
“The sustainment period is the investor’s 2 years of conditional permanent resident status. USCIS reviews the investor’s evidence to ensure sustainment of the investment for 2 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.”
This clear language states that an investor’s funds must remain “at risk” and invested in the project for at least 2 years after they receive their conditional permanent residence; in other words, it will be the date that their green card expires. (Also note it is the last date on which an investor may file their I-829, which can be done between 21–24 months after obtaining conditional permanent residence.)
As noted above, USCIS requires all of an investor’s capital to remain “at-risk” throughout the Sustainment Period. Normally, EB-5 projects plan for a return of investor capital after approximately 5 years. However, due to processing delays and lack of visa availability for applicants from some countries, there are cases where investors take longer than 5 years to complete the immigration process. So, what can an EB-5 project do if the initial project has been completed, the jobs have been created, but some investors are not yet eligible to have their investment funds returned as they must remain “at risk”?
Fortunately, USCIS has now clarified this issue, providing that projects:
“…may further deploy the repaid capital into one or more similar loans to other entities. Similarly, the new commercial enterprise may also further deploy the repaid capital into certain new issue municipal bonds, such as for infrastructure spending, as long as investments into such bonds are within the scope of the new commercial enterprise in existence at the time the petitioner filed the Immigrant Petition by Alien Entrepreneur (Form I-526).”
Of these options, particularly noteworthy is that projects may redeploy capital into “new issue municipal bonds,” which is relatively safe for investors, and is far easier to disclose in project documents than some future second project. (This is something I now include in any private placement memorandums I draft.)
The new June 2017 Policy Manual thankfully contains some clear and useful rules and definitions that can help project managers, developers, and investors navigate the sometimes-confusing EB-5 regulations. Please contact Derrico Law if you have any questions, or if I can assist with your EB-5 needs.