When can an EB-5 investor get their money back?

One of the common questions around the EB-5 green card is when the investor can get their investment back – in other words, how long must the EB-5 applicant maintain their investment at risk? USCIS recently issued new guidance on this question, in early October 2023. In this blog post, we will discuss that guidance and its conclusion regarding how long the EB-5 investment must be maintained and at risk in order for the applicant to qualify for an EB-5 visa.

The EB-5 immigrant visa provides permanent resident status (also known as a “green card”) to those who invest at least $1,050,000 into a business in the United States. If the business is located in a rural or high unemployment area (called a targeted employment area, or TEA), the investment amount can be reduced to $800,000.

The EB-5 applicant must show that their investment was put at risk and led to the creation of at least ten permanent jobs for qualified U.S. workers. For an overview of the EB-5 requirements and application procedure, see here.

To understand how long the EB-5 investment must be maintained, it is helpful to understand the EB-5 application process.

The first step to apply for an EB-5 green card is to file the Form I-526 with US Citizenship and Immigration Services USCIS). Currently, USCIS estimates that adjudication of the I-526 requires about five years.

Once the I-526 is approved, the applicant can apply for a conditional green card. This is done by filing the Form I-485 (if the applicant is inside the US), or by filing the online form DS-260 with a consulate (if the applicant is outside the US or prefers to apply at a consulate). Once the I-485 or DS-260 is approved, the applicant receives conditional lawful permanent resident status, which is valid for two years.

At the end of the two-year period of conditional lawful permanent resident status, the applicant must submit a Form I-829 application to remove the conditions. In adjudicating the I-829, USCIS reviews the EB-5 investment and job creation to determine whether the funds have been put at risk, the jobs have been created, and the applicant otherwise satisfies the EB-5 requirements.

Since the I-526 is taking about five years, it could be seven years or more before the applicant is able to file the I-829 application to remove the conditions from their permanent resident status. Once USCIS approves the I-829, the applicant receives full, unconditional lawful permanent resident status.

The length of time that the EB-5 investor must maintain their investment depends on when they filed their EB-5 application – meaning, specifically, whether the I-526 form was filed before or after March 15, 2022. On this date, the EB-5 Reform and Integrity Act (or RIA) went into effect and changed a number of laws affected the EB-5 visa, including the length of time that the investment needs to be maintained.

In this blog, we will refer to those applicants who filed their I-526 petition before March 15, 2022, as “pre-RIA applicants.” We will refer to those applicants who filed their I-526 petition on or after March 15, 2022, as “post-RIA applicants.”

EB-5 applicants who filed their form I-526 before March 15, 2022, must maintain their investment through the entire two-year conditional residence period. The two-year conditional residence period starts on the date that the adjustment to conditional permanent resident status becomes effective (if the applicant applied by filing an I-485), or on the date they enter the United States (if they applied by filing a DS-260 at a consulate).

This could mean that if it takes USCIS five years to approve the I-526 petition, the applicant could be required to maintain their investment for seven years or longer. A pre-RIA applicant who invested in a project that is scheduled to return the funds before the two-year conditional residency period is complete may need to re-deploy the investment capital to meet the requirement.

Those who filed their I-526 on or after March 15, 2022 are only required to sustain their investment for two years. USCIS has said that the two year-period starts on the date when the full amount of the investment ($1,050,000 or $800k if the investment is made in a targeted employment area, or TEA) is made into the EB-5 business, has full access to the funds in order to create the ten required jobs.

According to USCIS, an applicant that made the investment more than two years before the I-526 is filed should continue to maintain the investment at the time the I-526 is filed, even if that means that the investment is maintained for more than two years.

In the words of USCIS, “likely yes.” USCIS says that it would likely not deny the application of someone who meets the two-year investment requirement but takes back the funds before the I-526 is decided. However, the safest approach is to maintain the investment for at least two years and until a decision is issued on the I-526, even if that means the funds are invested for longer than two years.

In other words, how does the timing of when the EB-5 jobs are created affect how long the investment needs to be maintained?

The investment must be maintained until the EB-5 business has created the required ten jobs. This is the case even if it means that the investment must be maintained for longer than the two-year period that applies to post-RIA applicants. In other words, don’t take back your investment before you’ve created the required jobs.

For example, if a post-RIA applicant creates the ten full-time, permanent jobs before the two-year period that they need to maintain their investment, they must continue to maintain their investment for the two-year period. Meeting the employment requirement will not free them from the requirement that they maintain their investment for the required two-year period.

For pre-RIA applicants, the requirement is simpler since both the maintenance of the investment and the job creation must be completed by the end of the two-year conditional residency period. As a result, an applicant who applied before March 15, 2022, would not be eligible to take back their funds earlier, even if the jobs were created before the end of the conditional residency period.