A critical question for every EB-5 investor is: “How long must my capital remain at risk before I can get it back?” The answer to this has become more complex following the passage of the EB-5 Reform and Integrity Act of 2022 (RIA). Recent guidance from U.S. Citizenship and Immigration Services (USCIS) has provided much-needed clarity on this topic.
Understanding the EB-5 Process and Timeline
The EB-5 program grants permanent residency to foreign nationals who invest a minimum of $800,000 in a Targeted Employment Area (TEA) or $1,050,000 elsewhere, leading to the creation of at least ten full-time jobs for U.S. workers.
The process typically unfolds in these stages:
- File Form I-526E: The investor files a petition (Form I-526E for Regional Center investors, the most common path) to demonstrate they have invested the required capital.
- Obtain Conditional Residency: Upon I-526E approval, the investor and their family receive conditional permanent residency for two years.
- File Form I-829: Within the final 90 days of the two-year conditional period, the investor files a petition to remove the conditions, proving that the investment was sustained and the ten jobs were created.
While pre-RIA “legacy” petitions can take many years to process, petitions filed under the new RIA framework are often adjudicated much faster, sometimes in under a year for certain project types.
The Key Date: March 15, 2022
The RIA significantly changed the rules for how long an investment must be sustained. The pivotal date is March 15, 2022. The rules differ depending on whether you filed your I-526 petition before or on or after this date.
Rule for Pre-RIA Applicants (Filed Before March 15, 2022)
For investors who filed before the RIA was enacted, the rule remains the same. The investor must maintain their capital at risk throughout the entire two-year period of conditional permanent residency. This means the investment cannot be returned until after the investor has completed their two years as a conditional resident and is eligible to file Form I-829.
New Rule for Post-RIA Applicants (Filed On or After March 15, 2022)
The RIA introduced a significant change for new investors. For those who file on or after March 15, 2022, the capital must be sustained at risk for a minimum of two years.
This two-year clock starts on the date the full investment is made into the new commercial enterprise and is made available for job creation. This is a major shift, as it decouples the sustainment period from the lengthy adjudication and conditional residency timelines.
Key Scenarios for Post-RIA Investors
USCIS guidance has clarified a few common questions that arise from this new two-year rule:
- What if the two years are up before the I-526E is approved? According to USCIS, an investor has likely met the sustainment requirement if their capital has been at risk for two years, even if their petition is still pending. While USCIS has indicated it would likely not deny a petition on these grounds, the safest course is to keep the funds invested until the I-526E is approved.
- How does job creation affect the timeline? The investment must be maintained until the ten jobs are created, even if this takes longer than two years. The job creation requirement must be met regardless of the two-year sustainment period.
Understanding these timelines is crucial for any EB-5 investor. Navigating the nuances of the RIA and USCIS policy requires careful planning. If you have questions about your EB-5 investment timeline, schedule a consultation with us to discuss your specific situation.
