United States Citizenship and Immigration Services (USCIS) generally expects the full investment amount to be at risk when Form I-526 is being adjudicated, so the funds should be invested or placed in the project’s escrow account before the investor files their I-526 petition.
In essence, Form I-526 needs to demonstrate that an EB-5 investment had been made in compliance with the program’s many guidelines. Investors must show that the EB-5 capital is already invested or irrevocably committed to the project (that is, at risk). Therefore, an investor’s I-526 petition must be accompanied by documentation such as loan certificates, bank statements, security agreements, or promissory notes. If the information regarding the EB-5 investment is incomplete or unclear, USCIS may send a request for evidence (RFE), which might significantly delay the adjudication process. If the information is clearly misleading, USCIS will simply deny the petition. To avoid these scenarios, EB-5 investors must retain an immigration attorney with ample experience in the EB-5 program. An investor’s immigration counsel can file Form I-526 for them and ensure that the information is complete and accurate.
In addition to showing that the investment has already been made, Form I-526 must indicate that the foreign national invested at least $900,000 for a targeted employment area (TEA) project or $1,800,000 for a non-TEA project. Moreover, Form I-526 must prove that the invested funds were sourced legally. Since USCIS allows EB-5 investors to use a wide variety of sources of funds, the necessary documentation will vary in each case. Proving the legality of the EB-5 capital is usually one of the most complex aspects of filing Form I-526 and requires an immigration attorney’s assistance.
Once USCIS approves Form I-526, the investor can obtain conditional permanent resident status for two years. If the EB-5 investment is successful and creates the necessary jobs, the investor will be entitled to obtain permanent resident status after filing Form I-829.
