New Draft Rules On Redeployment of EB-5 Capital to a New Project

The USCIS issued a new draft EB-5 policy on June 14, 2017 which states that a new I-526 will be required when EB-5 capital is redeployed, provided that:

1. The first investment creates the needed jobs.
2. That the new commercial enterprise (“NCE”) redeploys capital into a new investment.
3. The investment is within the scope of the NCE’s activities.
4. The reinvestment is within a commercially reasonable amount of time.

The new policy also states that redeployment of capital that occurs before the immigrant investor becomes a conditional Green Card holder must be adequately described in the form I-526. Thus, for the investor’s pending I-526, the following will be required: An interfiled memo and information about the new project.

The new policy also states that during the conditional residence period, an investment may be further deployed in a manner not contemplated in the initial form I-526, as long as further development otherwise satisfies the requirements to sustain the capital at risk. In addition, “further development may be possible in cases where the requisite jobs were created by the investment (in the first I-526) in accordance with the business plan, as well as in cases where the requisite jobs were not created in accordance with the original business plan, and even if further development had not been contemplated at the time of the I-526 filing. However, if the jobs were not created with the first project, they must be created by the project to which the capital will be redeployed.

The new draft policy also contains a significant change. It says that once the investor files the I-829, he/she no longer needs to maintain investment beyond the two years of conditional green card residence status, assuming of course that the needed 10 jobs were created. The investor need only sustain the investment for two years from the date he/she obtained their conditional green card.

Our friend Martin Lawler has written a good explanation of the process, which can be read here.