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Partial Capital Contributions in the EB-5 Program

June 6th, 2023 Kyle Behring

Embarking on the EB-5 journey can be an exciting opportunity for foreign investors seeking a U.S. green card. However, the recent increase in the required investment amount to $800,000 has left many wondering how to navigate the financial hurdle. Fear not! In this engaging blog post, we’ll delve into the world of partial capital contributions in the EB-5 program, answering your burning questions along the way.

Can I file my EB-5 application without being fully invested?

Absolutely! The EB-5 regulations don’t demand that you have the full $800,000 invested when filing your I-526 application. However, USCIS requires you to demonstrate complete investment before they review your application. Think of it as a two-step dance: you show your intent to fund initially, then prove your ability to fund before the application review stage.

How does one show intent to fund?

To showcase your intent to fund, your attorney will work their magic with a range of documents. These can include investment contracts, offering documents, subscription documents, escrow agreements, partnership agreements, and a side letter outlining your initial investment details and the source of funds for the remaining balance. Together, they paint a picture of your commitment.

 

How does this empower investors?

By embracing partial investments, the EB-5 program opens doors for investors who may not have immediate access to the entire investment amount. It allows you enter the program, start the immigration process, and secure your spot in the queue while working towards completing the full investment. This flexibility puts you in control of your financial planning.

 

What evidence do I need to provide for partial investments?

To successfully file a partial investment EB-5 application, your attorney will guide you through the process of showcasing your intent and ability to fund the investment. This involves providing comprehensive documentation that demonstrates your commitment and outlines the source of funds for both the initial investment and the remaining balance.

 

How does the source of funds work for partial investments?

The source of funds for partial investments can vary from investor to investor. It can include the sale of assets like properties or stocks, cash-out refinancing, or even gifts from family members. As long as you can provide clear documentation supporting the source of funds, USCIS typically accepts them, giving you the flexibility to explore various avenues.

 

Can the source of funds change down the line?

Life is full of surprises, and USCIS understands that. If your circumstances change during the application process, you can update your source of funds documentation. For example, if you initially planned to sell a property but circumstances shift, you may be able to explore other avenues, such as a gift from a generous family member. Flexibility is key, as long as you can support it with the necessary documentation.

 

What determines an EB-5 project’s partial investment schedule?

All projects are different. There are several factors which influence the amount of time afforded to EB-5 investors to complete their investment using partial investments. Some projects require all the money upfront, in 3 months or are even willing to provide up to a year to fully fund. 

Timing Constraint #1: USCIS Processing Times for I-526E Adjudication

USCIS requires you to be fully invested at risk with $800,000 at the time of I-526E approval. This is not fully predictable as it depends on the USCIS processing times. For those looking for the maximum amount of time to fund their investment, historically, expecting USCIS adjudications to take at least 1-year has been conservative. Best practices suggest that a partial investment should be completed prior to I-526E adjudication to ensure that there is no delay in processing related to an incomplete EB-5 investment and source of funds report. Though it may not necessarily lead to a denial, if your I-526E application does not include your entire source of funds, including the evidence of full investment of the minimum required capital to qualify for EB-5, an EB-5 investor may receive a Request for Evidence (“RFE“) and may be required to provide their full investment more quickly than originally expected. Although I-526E processing times are highly variable, recent I-526E processing data and USCIS stated goals as outlined in the Reform and Integrity Act suggest EB-5 investors should be prepared to complete their EB-5 investment in 12 months or less to ensure timely processing and approval.

Timing Constraint #2: Project Requirements, Progress or Current Status

USCIS requires you to be fully invested at-risk into your job creating project prior to the job creating activity being complete unless qualified EB-5 bridge financing is in place. Different EB-5 projects have different requirements, different construction (job creation) schedules or financing commitments in terms of the timeframe the EB-5 investment must be available. For example, an EB-5 project which is nearing completion will require the full EB-5 investment to be available more quickly than a project which is multiple years away from completion. Another relevant factor is EB-5 job creation. For a construction-based project, typically EB-5 capital must be invested during the construction period in order to get full job creation credit, which is especially important for EB-5 projects utilizing bridge financing, or temporary financing which is replaced by EB-5 capital as it becomes available. For EB-5 projects using bridge financing structures, EB-5 job creation is effectively banked, meaning that EB-5 investors can get job creation credit for jobs that were created even before the EB-5 investor invested in the project, as long as funds are deployed during the EB-5 project’s construction period, which in turn limits the total timeframe EB-5 investors have to complete their partial investment schedules.

Timing Constraint #3: Sponsor/Consultant Preference

Behring’s EB-5 Program is Unique and Not all Sponsors or Regional Centers are Capable of Dealing with Partial Investments. Different EB-5 Regional Centers and EB-5 project sponsors will have different preferences for whether they would accept partial investments and how long they will provide EB-5 investors to complete their partial investments. It requires additional expertise, additional staff capabilities and it certainly adds complication to the task. Some Regional Centers may opt to not accept partial investment schedules at all and require all EB-5 investors to invest in full, though there is no USCIS policy requiring this. If you are utilizing an EB-5 agent, they may have preference where they will not allow you to use a partial investment strategy given the delay in closing your full investment. Immigration attorneys may not support your use of partial investment strategies because it causes them to file multiple times for the same I-526E petition.

The timeframe EB-5 investors have to complete their partial investments can be variable from Regional Center to Regional Center (and as noted above from EB-5 project to EB-5 project), but in most cases, the length of the time investors have to complete their partial investments is limited by USCIS processing times and project requirements. Behring Regional Center started providing partial investment plans in 2016 and was the first Regional Center to create a full program and widely accept partial investments. Behring has maintained 100% USCIS approval across all EB-5 applications that utilize partial investments without any issue from USCIS.

 

What happens if the project undergoes material changes?

Ah, the ever-elusive material changes. While changes to the project itself can have significant implications, fear not when it comes to your source of funds. USCIS allows flexibility in this area. However, it’s crucial to remember that any alterations outside of the source of funds may render your application invalid, requiring a withdrawal and refile with the updated project details.

 

Can I maintain my green card if there are material changes after approval?

Absolutely! Once your EB-5 application is approved, and you receive your conditional green card, material changes to the project won’t lead to revocation. You’ll need to file an I-829 to remove conditions, and if the project undergoes material changes during this stage, you’ll need to provide updated project details for USCIS to review. If necessary, you can present your case before a judge in immigration proceedings.

 

The EB-5 program with partial capital contributions opens up a world of possibilities for investors seeking a U.S. green card. By embracing this flexibility, you can start your EB-5 journey with Behring Co., secure your place in the immigration queue, and work towards completing the full investment till your review. It’s a pathway that empowers investors like you to take control of your future and make your dreams a reality in the United States.



Interested in Learning More About EB-5 Partial Investments?

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