Questions and Answers: Evidence of Capital “At Risk” for I-526

Question: In several memos written by attorneys on EB-5 regulations, it is stated that in respect of EB-5 new commercial enterprises, even though the statute requires an EB-5 petitioner to have invested or be in the process of investing the required capital, USCIS effectively requires the entire capital amount to be already invested and at risk in the commercial enterprise at the time the I-526 petition is filed. Please confirm that this is correct. If not, what is the timeframe in which the entire capital amount of $1,000,000 needs to be invested in the new commercial enterprise after the Form I-526 is filed.

Response: 8 CFR 204.6(j)(2) requires that the I-526 petition must be accompanied by evidence that the required amount of capital has been placed at risk, and notes the following:

Evidence of a mere intent to invest, or prospective investment arrangements entailing no present commitment, will not suffice to show that the petitioner is actively in the process of investing. The alien must show actual commitment of the required amount of capital.

This regulatory requirement has been in place since the inception of the EB-5 program. The capital does not have to be fully invested at the time of the filing of the I-526 petition. However, the evidence provided in support of the investor’s I-829 petition must show that the investor has invested or was actively in the process of investing the requisite capital, and that the investment was sustained throughout the period of conditional permanent residence. See INA 216.6(d) and 8 CFR 216.6(c).

Taken from USCIS Quarterly EB-5 Stakeholders Meeting on June 30, 2011