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Eb5 Capital in Direct and Indirect Investment Visas

Can you request to get your money back from Regional Center after your second Green Card is arrived?

The short answer is no! And this is another reason to have your Eb5 investment run by you (direct investment instead of regional center).

The regulatory definitions in an Eb5 visa including “invest” and your capital to be at risk” would not allow a “redemption language” in your capital. And that is when the capital is written or contracted or agreed upon to be in exchange for a bond, note, obligation, convertible debt” and similar arrangements.

Any contract between “Eb5 business” and investor” that gives the investor “contractual right” to request for the contribution of the “funds” is against “Eb5 investment”. That is why the Eb5 regional center (when an investor gives his money to a third party) is a very attractive offer for “regional centers” but not so much for the Eb5 investor.

Eb5 investor must place his “capital at risk”. A regular business run by a business owner is “inherently at risk”. They are multiple factors that would cause ups and downs in the business and this multi-faceted work of business adventure would not make the owner, solely responsible for all positive or negative cash flow. This is in direct Eb5 investment.

In Investments through regional centers, the third party regional centers are responsible for management of the business and capital. The regulations make it so clear that “investor” cannot enter into any agreement with the “center” to receive the funds, or any portion of it or returns. Any such agreements would “disqualify” the investment as “capital” and renders the Green Card application not approvable.

The laws make any provisions of “redemption rights” for an Eb5 investor at any given time “impermissible”. This “impermissible debt arrangement cannot be cured” by any other clauses whether mandatory, contingency, optional, etc. Any clause that provides the rights for the buyer would not be in compliance with Eb5 regulations.

In Eb5 direct, the money stays with the investor and the risk is “inherent”. The immigrant investor must provide evidence of “actual undertaking” of the business activity. Only registering a business is NOT enough. Only signing a commercial lease is not enough.

The USCIS wants to assure that the business of the commercial enterprise would be continued and unless such business has come to a certain point, validity of such assurance does not appear to be reasonable.

Remember, Capital must be Available

The full amount which is either $900,000 or $1,800,000 in some zip codes must be available to the business and if there is an entity that is responsible as “job creation” entity within the “new enterprise” any associated fees, filings, attorney fees, administrative fees must be in addition to the minimum requirement for the payment.

Remember, the Investor's Money cannot be in his Own Account

There must be “escrow accounts” which petitioner does not exercise sole control, otherwise the funds do not satisfy the “at-risk requirement”. The money maybe held in escrow accounts in the foreign country but it is highly recommended that this money to be transferred to the US at the beginning to avoid the issues of transferability, currency fluctuations, sanctions, etc.

Employment based immigrant visa category 5 or as is called “Eb5” contain complex business process. In particular, the financial procedures must be handled in detail and with extreme accuracy. The calculated and planned steps are substantially more than “mere opening up a business”. The thorough assessment of the situation will need to be diligent and careful. Any deviation of the proper procedure would cause the investor's petition to be denied. Yu must consult with an experienced lawyer to receive proper consultation before you decide to engage in any business activity in the US.

Seek legal advice from an our office- we strive to guide you with your specific case and decision regarding whether or not you qualify for TEA within the EB-5 employment visa.

Attorney Ramona Kennedy cares about your case and will fight for you.

You can contact attorney Ramona Kennedy Law Offices (Kennedy Law LC) for an initial consultation and case evaluation. The first consultation is free of charge. 

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