EB-5 Investment Immigration: Risk Period of Investment Funds and Form I-829 Application
EB-5 Investment Immigration: Risk Period of Investment Funds and Form I-829 Application
Attorneys:Attorney Jeff Zhengquan Xie,Attorney Jiarui Yin,Attorney Qian Zhao,Attorney Haochun Ling, Xiao Xiang
Many EB-5 investors are particularly concerned about whether their Form I-829 applications will be approved. Form I-829 is the application used to convert an EB-5 investor’s two-year conditional permanent resident card into a 10-year permanent resident card.
The final approval of a Form I-829 application is influenced by numerous factors. This article only explores the relationship between Form I-829 applications and the risk period of EB-5 investment funds.
As we all know, EB-5 investments must be Investments At Risk. Such risks include the potential total loss of investment funds and the failure of green card applications. However, these represent the worst-case scenarios for EB-5 investments—they cannot get any worse than this. In other words, if a project fails and the investment is lost, EB-5 investors are not required to inject additional capital into the project or assume other financial liabilities.
This is the reason why EB-5 investors are designated as limited partners in EB-5 project documents. Investors should exercise extreme caution if project documents do not explicitly specify them as limited partners. Of course, this does not apply to investors who choose direct investment projects that do not go through regional centers.
The risk period of EB-5 investment funds commences as soon as the investor’s capital is transferred from the escrow account to the project operator’s operating account. This period lasts until the investor recovers all or part of their investment funds.
Affected by visa retrogression, EB-5 investors often face long delays in obtaining green cards. The timeline for recovering investment funds has been a persistent issue plaguing the investment immigration industry, including EB-5 investors themselves, for many years.
On October 11, 2023, U.S. Citizenship and Immigration Services (USCIS) issued new guidelines under the EB-5 Reform and Integrity Act (RIA)—also known as the New EB-5 Policy—providing clear stipulations on the investment duration required for EB-5 investors.
According to these new guidelines, the length of the "investment maintenance period" required for an EB-5 investor depends on whether the investment was made and the immigration application (Form I-526 or Form I-526E) was filed before or after the enactment of the New EB-5 Policy.
The "investment maintenance period" is a term defined under immigration law. From the perspective of EB-5 investors, the "investment maintenance period" is equivalent to the investment risk period—they refer to the same time frame.
For investments made and Form I-526(E) applications filed under the New EB-5 Policy, the investment maintenance period is at least two years starting from the date of investment deployment. This means that the capital of new EB-5 investors must remain invested for two years or longer. This requirement is not tied to the issuance or expiration date of the conditional permanent resident card.
This new policy stipulation on the investment risk period seems too favorable to be true for EB-5 investors. However, its ultimate implementation remains uncertain. First, the policy is too new—no EB-5 investor has yet reached the stage of filing a Form I-829 application under this framework. Second, multiple lawsuits have already challenged this provision in court, and the final decision will rest with the judiciary.
Even so, USCIS has explicitly stated that the minimum two-year investment maintenance period under the New EB-5 Policy does not apply to applications filed prior to the policy’s enactment. For these earlier investors, the investment maintenance period is equivalent to the two-year validity period of the conditional permanent resident card. In other words, the investment funds must remain at risk until the expiration date of the investor’s conditional permanent resident card.
Due to visa retrogression, many EB-5 investors—especially those born in Mainland China—must wait years to obtain their conditional permanent resident cards. As a result, these investors inevitably face an exceptionally long investment risk period. This period includes not only the entire waiting time during visa retrogression before receiving the conditional green card, but also the subsequent two years after obtaining the card—i.e., the "investment maintenance period" as defined by USCIS.
Under U.S. immigration law, Form I-829 applications can only be filed within 90 days before the expiration of the two-year conditional permanent resident status—which is to say, before the end of the investment risk period or investment maintenance period.
Investors are not permitted to withdraw their investment funds to terminate the risk period before filing Form I-829. Legally speaking, investors may withdraw their funds three months after submitting Form I-829, thereby ending the investment risk period. In practice, however, there have been no known cases of EB-5 investors rushing to withdraw funds immediately after this three-month window. Of course, the absence of known cases does not mean such situations have never occurred or will never occur. In the event of special or emergency circumstances, an EB-5 investor who recovers their funds three months after filing Form I-829 will not have their application directly denied. However, if funds are withdrawn before the end of the investment risk period or investment maintenance period, the Form I-829 application will most likely be rejected.
The above overview is prepared by XIE LAW OFFICES,LLC. to provide legal information to the Chinese community. It is primarily for academic discussion purposes and does not constitute legal advice on specific cases. If you already have legal representation, please consult your own attorney, who is familiar with the details of your case. Clients of Xie & Associates Law Firm, as well as readers who have not yet retained legal counsel, may contact Attorney Xie for specific legal questions. If you wish to reprint this document, please do so in full without any deletions, and clearly indicate the source.
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