EB-5 rules allow a direct guarantee from the new commercial enterprise (or job creating entity) to the EB-5 investor in the event of I-526 petition denial.

The at-risk requirement means the EB-5 investor’s capital must be fully invested in job-creating activities with a risk of loss and a chance for gain. The NCE cannot provide a guaranteed return of or on the capital at a fixed date or a fixed amount.

EB-5 rules allow indirect guarantees between the NCE and the JCE or other third parties. Here, the NCE receives guarantees often seen in non-EB5 projects to mitigate commercial risk, rather than the EB-5 investor directly. These guarantees, such as a construction completion guarantee, helps to ensure the project is completed successfully to satisfy the EB-5 investors’ job creation requirements and to return the EB-5 capital.

The at-risk requirement does not mean the EB-5 investor must make a risky investment.