As discussed in the previous blog post discussing potential changes to the EB-5 job creation requirement in light of unprecedented demand, the EB-5 visa has never before been so highly sought. Indirect EB-5 projects are administered by the regional center under whose umbrella the project is handled. Some particularly notable projects being financed through EB-5 immigrant investors includes Hudson Yards and Pacific Park located in New York City, Hunter’s Point Shipyard in San Francisco, SLS Las Vegas, as well as the Panorama tower in Miami. In fact there is a multitude of EB-5 projects in progress in Florida and across the nation. The record demand for these permanent employment-based visas that can provide a pathway to a green card and citizenship has resulted in United States Citizen and Immigration Services (USCIS) clarifying a number of its policies regarding the criteria for EB-5 investments. Whereas in the last article the recently released proposed USCIS guidance regarding the job creation requirement was addressed, this article will address agency guidance concerning the EB-5 investment sustainment requirement.
What is the Investment Sustainment Requirement?
One of the requirements of a qualifying EB-5 investment is that the investment was made and sustain during the relevant time period. For EB-5 purposes, the relevant time period is period where the immigrant investor is living in the United States as a conditional green card holder. The immigrant investor is required to sustain his or her investment into the new commercial venture during this time period. At least 90 days prior to the 2 year anniversary of the investor immigrant’s conditional permanent resident status, the EB-5 investor must file Form I-829 evidencing that the sustainment obligation has been satisfied or currently in the process of being satisfied. In practice, the investment sustainment obligation is actually two distinct requirements. First, is the requirement that the investment be made into a new commercial enterprise. Second, is the requirement that the capital remains “at risk” throughout the sustainment period.
The New Commercial Enterprise Requirement
A “new commercial venture” is any business established after November 1990. Furthermore, even businesses already existing in November 1990 can be considered new commercial ventures if one of two criteria following are true:
- The business has been purchased and sufficiently reorganized so as to create a new commercial venture or
- The already existing business’ net worth or number employees has increased by 40 percent or greater due to the investment.
Additionally, The Immigration and Naturalization Act section 203(b)5(A) states that the investment must be made into “a new commercial venture.” USCIS has confirmed that in accord with past policy guidance, the agency still interprets this language to mean that the investment must be into a single new commercial enterprise. Likewise, the invested funds must be sustained in the single new commercial venture.
The Capital Must Remain At Risk
Capital that is at risk is capital that can appreciate or depreciate in value. However, the current policy adopted and clarified by USCIS does permit the immigrant investor to keep the funds intended for investment in an escrow account during the I-526 petition stage and until the time where the immigrant investor has received his or her conditional green card. However, the escrow must be set up to for the immediate and irrevocable release of the qualifying investment upon approval of the I-526 petition, visa issuance, and admittance into the United States. If the capital is merely kept in the escrow account the funds are not subject to increase or decrease and thus do not satisfy the “at risk” requirement. During the I-829 stages, the immigrant investor must verify that the funds remained at risk during the sustainment period. An immigrant investor is permitted to profit off of his or her qualifying investment provided that the returns were not guaranteed or the return is a portion of the principal investment. USCIS policy also allows an EB-5 investor who suffered a complete loss of his or her investment to meet the sustainment requirement provided that the investor can demonstrate a full investment was made and the total loss was a direct result of the investment. If the loss was merely coincidental or incidental to the investment, the sustainability requirement will not be satisfied. 
Rely on Our Miami Investor Visa Attorneys
In the first two parts of this series we have analyzed USCIS guidance concerning EB-5 job creation and investment sustainment requirements. In the final piece, we will examine USCIS guidance provided regarding material changes to the immigrant’s status. The strategic and experienced immigration attorneys of Colombo & Hurd are dedicated to providing clear immigration answers for immigrant investors and others interested in investing into the United States and its people. To schedule a confidential immigration consultation at either our Orlando or Miami offices call our Orlando investor visa lawyers at or contact us online today.
