By Robert P. Gaffney, Esq. and Wendy C. Yu, Esq.
According to the EB-5 regulations an EB-5 investor will be considered to have sustained the actions required for removal of conditions if he or she has, in good faith, substantially met the capital investment requirement of the statute and continuously maintained his or her capital investment over the two years of conditional residence.
In a June 14, 2017 amendment to the U.S. Citizenship & Immigration Services (“USCIS”) Policy Manual, the USCIS explained that in order to be eligible for removal of conditions on their permanent resident status, an investor’s qualifying investment capital must remain “at-risk” throughout his or her respective “Sustainment Period.” Under this guidance, USCIS clarified that the “Sustainment Period” is defined as the two-year period of conditional residence which commences when an immigrant investor first becomes a conditional lawful permanent resident, and also that an investor does not need to maintain his or her investment beyond the sustainment period in order for USCIS to approve the investor’s I-829 petition.
The Policy Manual further provides that once an investor’s job creation requirement has been met, the capital will be considered properly “at risk” if it is used in a manner related to engagement in commerce which is consistent with the scope of the new commercial enterprise’s ongoing business. For investors who have not yet completed the 2-year sustainment period, this policy allows for the redeployment of EB-5 investor capital upon completion of the original project.
It should be noted that USCIS policy guidance including the updates to the USCIS Policy Manual on these issues does not have the force of law and until such policy is published in formal regulations, may be revised should USCIS determine that revisions are necessary or appropriate.
This information is not intended to constitute legal advice, nor does it create an attorney-client relationship between Law Offices of Robert P. Gaffney and anyone else. This information is not intended to be used as a substitute for specific legal advice based on an individual or organization’s particular facts and circumstances, and it should not be considered as such.