More on Redeployment of EB-5 Funds

Last week I wrote about redeploying EB-5 capital from the initial project to another project before the I-829 is granted. An EB-5 developer asked for some clarification including the following questions:

Question: If a project creates the necessary jobs and is sold or refinanced, and the funds are moved to another at risk project, if the original investment was in a TEA, do the funds have to be reinvested in another at risk TEA project?

Answer: The USCIS has not said the funds have to be redeployed in a project in a TEA and thus I believe the answer is no, they do not have to be redeployed in a TEA.

Question: Does the second project need to create 10 new jobs per EB-5 investor or could it be a project that was opened after the original investment was made and created 10 jobs before taking on the re-invested money?

Answer: The redeployed funds do not have to create any new jobs, assuming that the first project created the needed 10 jobs. If the first project created the jobs, the issue with re-deployment is not jobs, but whether the capital is at risk. If the first project did not create the 10 jobs, and the jobs are to be created in the new project to which the $900,000 funds are redeployed, I would assume that the new project would also have to be in a TEA. Whether it must be in a TEA or not has not been answered by USCIS.

Question: Will re-deployment be considered a substantial change?

Answer: Usually yes. Redeployment often takes place after a number of years and after the EB-5 investors immigrate to the United States. But if the funds are redeployed before the I-526 is approved or the investor immigrates, then there is a question of whether this is a substantial change which may cause the I-526 to be refiled. USCIS policy says that if there is a substantial change while the I-526 is pending, the I-526 has to be refiled. USCIS is silent on the period between I-526 approval and obtaining a Green Card; after which, redeployment is a substantial change and it is permitted assuming that the first project has or the second project will create the needed 10 jobs and the investors’ funds are at risk.