Understanding the EB-5 At-Risk Requirement

For families seeking a better future in the United States, the EB-5 visa program has become a key path toward permanent residency. However, the process includes many legal and financial steps, and missing just one of them can lead to delays or even denial of your petition.

One of the most important rules in the EB-5 program is the at-risk requirement, and many investors do not understand this rule when they begin their EB-5 journey.

In this article, we will break down the at-risk requirement in simple terms to help you make better and safer decisions for your future.

What Is the At-Risk Requirement?

The at-risk requirement means that the investor’s money must be subject to both potential loss and potential gain. That is, the law does not allow investors to protect their funds from risk during the EB-5 process. This is why the money must be invested in a real commercial enterprise and used for job creation.

To count as at risk, an EB-5 investment must:

• Be invested in a for-profit business.
• Have no guaranteed return or repayment.
• Show a chance of financial loss and gain.
• Be used to create full-time jobs for U.S. workers.

When Does the At-Risk Period Begin and End?

The at-risk requirement protects the original purpose of the EB-5 program, which is to encourage job creation in the U.S., not just offer a path to a visa in exchange for capital.

This period begins once the required EB-5 investment is made available to the business project, meaning the funds are actually deployed and subject to commercial use. Under current rules for post-RIA investors, the investment must remain at risk for at least two calendar years from that point. During this time, the capital must be actively used in the enterprise and exposed to the possibility of both gain and loss. Once the two-year sustainment period has passed and the job creation requirements have been met, the at-risk obligation ends. At that stage, investors may be eligible to receive a return of their capital, depending on the project’s terms.

How EB-5 Investors Can Meet the At-Risk Rule

To meet the at-risk rule, you must take steps to ensure your investment fits the legal standards. Here’s how to stay compliant:

• Choose a strong investment project: Your money must go into a business that aims to make money, not a nonprofit, charity, or personal project. A low-risk regional center project would be ideal for this. Also, make sure the enterprise is legally formed and registered.
• Avoid guaranteed returns: If a project or regional center offers to repay your investment with no risk, it does not meet the EB-5 rule. Therefore, you should be wary of contracts that mention fixed repayment dates, minimum returns, or complete capital protection.
• Ensure the funds are deployed: Your investment should not sit idle in a personal or escrow account. It must go into the business and be used to support activities that lead to job creation.
• Don’t remove funds too early: Early withdrawal, even if the project is complete, puts your Green Card at risk. Don’t withdraw before you’ve met the two-year sustainment and job-creation requirements—and only per the project’s terms (no guarantees).
• Track and document fund use: Ask the business or regional center for regular reports showing how the money is used. You will need this proof when you file your I-829.
• Work with experienced professionals: Hire an immigration attorney who understands EB-5 rules. They can help you review documents, avoid red flags, and stay compliant.

Key Exceptions and Considerations

While the at-risk requirement is central to the EB-5 program, there are some nuances and exceptions that you should be aware of:

Redeemable Investments

EB-5 projects include the possibility of returning the investor’s funds after the at-risk period is over. This is allowed, as long as the return is not guaranteed and the money remains at risk during the required period. So, if USCIS sees a future repayment plan but no promise to repay, this will not cause compliance issues.

Regional Centers

Regional centers offer pooled investment projects that many EB-5 investors prefer. They often allow for lower involvement in daily business activities and some offer structured investment terms. Some investors wonder whether regional center structures conflict with the at-risk rule. However, USCIS allows certain structures in regional center investments, such as:

• Preferred equity positions
• Return of capital after job creation
• Third-party repayment after the at-risk period ends

As long as the investment carries financial risk throughout the EB-5 process, these features do not disqualify the project.

EB5AN Can Help You Navigate the At-Risk Requirement

The at-risk requirement is one of the most important rules in the EB-5 program, and it is used to make sure that investors are truly supporting the U.S. economy. This is why mistakes around it can lead to delays or denial of your petition, even if you invest in a strong project.

At EB5AN, we help investors avoid common errors and select EB-5 projects that follow all program rules. Our team has guided more than 2,700 families through the EB-5 process to become permanent residents across 70+ countries.

If you want to make sure you choose projects that help you stay on track toward your U.S. permanent residency, schedule a free call with our team today.