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Where should EB-5 investment funds be when Form I-526 is filed?

When adjudicating Form I-526, Immigrant Petition by Alien Investor, United States Citizenship and Immigration Services (USCIS) expects to see that the EB-5 capital has been invested in the new commercial enterprise (NCE). In practice, this means the funds should be transferred to the project’s escrow account before Form I-526 is filed. In many projects, the EB-5 capital is kept in the escrow account until the investor’s I-526 petition is approved by USCIS. It is critical for investors to show USCIS that the EB-5 capital has been irrevocably committed to the project.

The main purpose of Form I-526 is to demonstrate that EB-5 investors have complied with the program’s regulations. These regulations include the minimum investment amounts of $900,000 for targeted employment area (TEA) projects and $1,800,000 for non-TEA projects. Moreover, the EB-5 project must be able to generate a minimum of 10 full-time (at least 35-hour) jobs for each EB-5 investor.

One of the most challenging aspects of preparing Form I-526 is proving that the EB-5 capital was sourced lawfully. USCIS requires abundant evidence that the invested funds originated legally, so investors will likely have to gather numerous documents tracing the investment back to its source. As investors can use any legal source to fund their EB-5 projects, the needed evidence will vary in each case. EB-5 investors can use sources such as real estate sales, secured loans, salary payments, stock proceeds, inheritances, gifts, and even cryptocurrency.

Besides providing information on the EB-5 investment, an investor’s I-526 petition must also show that the NCE in question complies with the program’s regulations. Additionally, the project’s business plan must indicate that the needed jobs will be created. A hiring timetable and an economic analysis of the project count as acceptable evidence.

Typically, immigration attorneys complete and submit Form I-526 for their clients.