Investors Who Have Obtained EB-5 Conditional Lawful Permanent Resident Status

Nothing in this change in policy relieves an alien investor from the requirements for removal of the conditions as set out in 8 U.S.C. § 1186b(d)(1) and 8 C.F.R. § 216.6(a)(4). Thus, even in the event of a change in course, a petitioner must always be able to demonstrate (1) that the required funds were placed “at risk” throughout the period of the petitioner’s residence in the United States, and (2) that the required amount of capital was transferred to the business or businesses most closely responsible for creating the employment; and (3) that this “at risk” investment was “sustained throughout” the period of the applicant’s residence in the United States. Accordingly, if an alien investor fails to meet any of these requirements, he or she would not be eligible for removal of conditions.

For example, in the case of a petition affiliated with a regional center, the petitioner will only be able to claim indirect job creation if the new business plan falls within the scope of the regional center (as defined by either the initial approval or by subsequent amendment to the regional center) with which the petitioner is affiliated. So if an alien was admitted to the United States based on a petition related to a regional center that was only approved for projects related to the food service industry, if the proceeds of the alien’s investment were subsequently redirected to an alternate project within the job-creating entity, that project would have to be within the food service industry to continue to take advantage of the indirect job creation provisions of the regional center program. Moreover, the applicant must be able to demonstrate that the capital originally placed at risk and made fully available to the original job-creating entity, was expeditiously redirected into the alternate project, such that USCIS can conclude that the full amount of capital was at risk and fully available to the job creating entities throughout the period of conditional residence. Similarly, if a change in plan required the liquidation of an investment and reallocation of that investment into either another job-creating entity or new commercial enterprise, the petition may not comply with the requirements to invest and sustain the investment throughout the period of the alien’s residence in the United States.

Taken directly from USCIS’ EB-5 Adjudications Policy Memorandum posted on February 14, 2013.