EB-5 Loan Duration

Many Regional Centers (“RCs”) take in EB-5 capital to the New Commercial Enterprise (“NCE”) which then loans the funds to the Job Creating Entity (“JCE”).

The loan terms are often for 5 years, enough time for the EB-5 investor to immigrate to the U.S., plus the 2 years as a conditional resident, and have their I-829 application for removal of conditional resident status granted. This is so as the USCIS requires the investor’s capital to be at risk throughout this entire period.

Further, in case the process takes longer, some loan agreements between the NCE and JCE provide the funds will not be returned until the investors’ I-829s are decided.

Recently retrogression of the China visa quota added years to the above timeline. This created a question: will USCIS grant an I-829 if the jobs were created and the loan is repaid to the NCE (but not the investor) after 5 years, but before his/her I-829 is decided?

As I have reported in my newsletter, USCIS has said for months a new policy memo is forthcoming, which will answer this question. But there remains no guidance from the USCIS.

The EB-5 RC extension Grassley-Leahy Bill, S. 1501, proposes an interesting change. Under the proposed statute, when an immigrant application has been pending for more than 2 years, the immigrant would be admitted not as a conditional resident, but a full permanent resident with no need to file an I-829. Thus, the loan could be repaid sooner than 5 years. RCs may wish to take this possible statutory change into consideration in negotiating loan agreements with JCEs.