When Does the EB-5 Investment Need to Be Completed? A Guide for Investors

The EB-5 Immigrant Investor Visa is a popular path to U.S. permanent residence, but it comes with complex requirements. One frequently asked question is: When does the investment in the EB-5 business need to be made? The answer depends on when you filed your EB-5 application and the specific rules governing your case.

Investment Requirements Before and After March 15, 2022
The rules surrounding the timing of EB-5 investments changed significantly with the passage of the EB-5 Reform and Integrity Act of 2022, signed into law on March 15, 2022. Here’s how these rules apply based on your filing date:

If you filed your EB-5 application (Form I-526) before March 15, 2022, you could be “actively in the process of investing” at the time of filing. This means:

• You did not need to invest the full amount before submitting your application, but you had to show a binding commitment to complete the investment.
• Acceptable methods included promissory notes or escrow agreements, provided they met specific legal requirements.

• The note had to be legally binding, with the applicant personally responsible for payment.
• The applicant had to prove they had the assets to satisfy the note, and those assets must be accessible to the EB-5 business if needed.
• The note must be payable within the conditional permanent residency period.

• Funds in escrow had to be irrevocably released upon the applicant’s grant of conditional permanent residency.
• Escrow accounts could be held abroad, but it was recommended they be in the U.S. to avoid currency fluctuation risks.

The EB-5 Reform and Integrity Act eliminated the ability to invest over time for new applications. Under the new law:

• The full investment amount of $800,000 (in a Targeted Employment Area) or $1,050,000 must be fully invested before the Form I-526 is filed.
• Promissory notes are no longer allowed to satisfy the investment requirement.
• Escrow agreements are still permissible but must meet strict requirements.

Meeting the investment requirement is critical because USCIS will closely scrutinize whether the funds are irrevocably committed to the job-creating enterprise. Failure to meet this requirement can result in delays or denials years into the application process.

• Complete the Investment Early: Even if filing under pre-2022 rules, completing the investment before submitting the I-526 reduces potential government scrutiny.
• Consult Experts: Work with experienced immigration attorneys to structure your investment and ensure compliance with evolving regulations.
• Be Proactive: For applications filed after March 15, 2022, ensure the full investment amount is ready before filing.

Navigating the EB-5 program requires understanding complex and evolving rules. Whether you filed your application before or after March 15, 2022, ensuring your investment is structured correctly is crucial for a successful outcome.

At Scott Legal, P.C., we specialize in assisting EB-5 investors at every stage of the process. Contact us today for personalized guidance or explore our free resources and webinars for more information.