Created by the Immigration Act of 1990, the EB-5 visa program offers a path to lawful permanent residency for eligible foreign investors. As of 2017, U.S. Citizenship and Immigration Services confirmed a requirement known as redeployment in the online version of its policy manual. Read on for answers to some of the most frequently asked questions about EB-5 redeployment and what this means for immigrant investors:
1. What does the redeployment requirement confirmation mean for investors?
If you haven’t obtained a CLPR yet, you must adhere to certain requirements as an immigrant investor. With regard to job creation, if your EB-5 investment has yet to result in 10 new positions, you are required to redeploy funds to an active business venture with the potential to gain or lose money. The invested funds should be directed to the job creating entity (JCE). On the other hand, investors with CLPR status tend to have less stringent redeployment obligations. They can redeploy funds into an activity not described by the original business plan, provided that the plan was created in good faith.
2. At what point do investors need to comply with redeployment?
U.S. Citizenship and Immigration Services policy requires that EB-5 investors keep their funds in an at-risk state throughout the time they’re in CLPR status. This obligation means that any funds the JCE returns to the NCE must adhere to rules for redeployment. For example, in a case where the investor’s I-526 is still pending, the NCE is required to redeploy all investment funds to another at-risk business activity that’s engaged in commerce. Funds must be redeployed to the same JCE mentioned in the I-526 in the event that the investment has yet to create 10 jobs. Redeployment requirements are valid until the immigrant investor obtains a CLPR.
3. How long is an immigrant investor required to maintain the investment at risk?
According to the latest update from U.S. Citizenship and Immigration Services, the period for which an investor is required to redeploy funds spans two years from the date on which conditional permanent residence status was granted. At that point, investors are no longer required to keep investments in at-risk status or redeploy EB-5 funds. Withdrawing funds will not prevent immigrant investors from receiving I-829 approval.
Note that the I-829 adjudication process is used to determine whether or not an investor kept funds at risk during the required two years after obtaining CLPR status. However, individuals who still have funds invested during the adjudication process could enjoy more flexibility when it comes to demonstrating job creation than those who have withdrawn funds.
4. How does redeployment affect immigrants from countries with CLPR visa waiting lists who have already been approved for the I-526?
Redeployment requirements are based on when investors receive their CLPR visas. So, investors whose CLPR visas are delayed because of their countries’ specific waiting lists are still required to meet redeployment requirements during that time. Even if you’ve been approved for a 526, you must fulfill the redeployment requirement until you’ve had your CLPR for a period of two years. Investors who have yet to receive a CLPR and have failed to create 10 jobs must redeploy funds into an at-risk business activity engaged in commerce and divert funds to the JCE.
5. Which interviews will feature questions about redeployment?
Immigrant investors should be prepared to answer redeployment questions as part of the interview process. The goal is to determine EB-5 immigrant visa eligibility. Generally, the U.S. Citizenship and Immigration Services conducts the interviews for Adjustment of Status (“AOS”) and I-829 Removal of Conditions for individuals living within the United States. For immigrant investors living overseas, the U.S. Department of State performs consular processing interviews for visas.
6. What materials must be brought to the interview?n
It’s important to show up to your interview with all the necessary documents and financial statements. Commonly requested materials include Regional Counter financial summaries, NCE bank account information, loan records between the NCE and JCE, and redeployment documentation. If you’re not sure what documents to bring to your interview, don’t hesitate to speak to a knowledgable EB-5 attorney for more information.
The fact is that EB-5 rules and requirements can be complex, and not all attorneys have the background necessary to navigate the process. To find out more about EB-5 redeployment requirements, call today or contact our team online.
