EB5 Investors Magazine "Top 25 issue" Volume 9 Issue 1 | Page 14

conditional resident , but he might have become repaid much earlier than that admission .
It is not entirely clear that the RIA drafters who referred to the “ sustainment period ” in the definition of “ capital ” and who added a new section establishing “ parameters for redeployment ” in new INA § 203 ( b )( 5 )( F ) realized that the driver of redeployment in the first place was being deleted . But the RIA inserted a replacement sustainment period : revised INA § 203 ( b )( 5 ) now requires that the investor ’ s capital invested in the NCE “ is expected to remain invested for not less than 2 years .” That is the only provision that could be referred to as the “ sustainment period ” after which repayment from NCE to investor is allowed . Ostensibly an unexpected liquidation to the NCE within the two years still requires a redeployment .
But the deletion of the old , long sustainment period applies only to post-enactment investors . Section 104 ( b )( 2 )( B ) provides :
( B ) PETITION BENEFICIARIES .— The amendments made by subsection ( a ) shall not apply to the beneficiary of a petition that is filed under section 216A of the Immigration and Nationality Act ( 8 U . S . C . 1186b ) if the underlying petition was filed under section 203 ( b )( 5 ) of such Act ( 8 U . S . C . 1153 ( b )( 5 )) before the date of the enactment of this Act .
" Thus , investors who filed I-526 before RIA enactment on March 15 , 2022 , must keep their capital invested with and through the NCE until the end of their two years of CPR ."
some investors could receive return of their capital even before adjudication of their I-526 petition and remain eligible for immigration benefits .
As many as 70,000 investors filed Form I-526 before RIA enactment and have not yet reached the end of their conditional residence . It is crucial that they remain vigilant to ensure that their NCE does not distribute their capital too early and redeploys the capital in keeping with USCIS policy .
Now , among the myriad factors for prospective EB-5 investment decision is the likelihood that an NCE under consideration will be in a position and obligated or motivated to return the capital . The RIA , mirroring pre-enactment USCIS policy , prohibits an NCE from obligating itself to return capital at a certain time ( including when the sustainment period ends ), but nothing appears to prevent the longstanding practice of NCEs to enter into a loan agreement with a JCE for a certain term and then , upon repayment , distribute capital to EB-5 investors who have met the new sustainment period . The pressure in the market for forecasted early return of capital could tend to drive EB-5 capital to initial projects that impose more risk on their capital than even a series of redeployments that pre-enactment investors might face . Prospective investors would be wise not to place too much emphasis on early return of capital , but avoiding cycles of redeployments will be welcome to most in the industry .
Thus , investors who filed I-526 before RIA enactment on March 15 , 2022 , must keep their capital invested with and through the NCE until the end of their two years of CPR . Those investors must make sure that their NCEs keep redeploying their capital in successive risky ventures in commercial activity until the expiration date on their initial two-year green card arrives . They must not confuse their situation with that of post-enactment investors .
Investors who file Form I-526 ( I-526E , for an investor sponsored by a regional center ) after enactment must sustain their investment only for two years from when the capital is “ invested .” It is not clear what starts this two-year clock . Options include : ( 1 ) date the capital is released to the NCE ; ( 2 ) date the NCE transfers the capital to the ultimate job creating entity ( JCE ); or ( 3 ) date that the JCE spends the capital in commercial , job creating activity . These dates could be some years apart , so it really matters for USCIS to clarify it . Given the importance of remaining eligible for immigration benefits , it seems prudent to use the latest date until USCIS clarifies otherwise . Nevertheless ,
Robert C . Divine chairs the immigration group of Baker Donelson with offices in 24 U . S . cities , including Washington , D . C . He served from 2004 through 2006 as the chief counsel and , for a time , the acting director of USCIS . Divine is the author of “ Immigration Practice ,” a 1,600-page practical treatise on all aspects of U . S . immigration law . He served for seven years as a vice president of IIUSA , an industry association for EB-5 regional centers . He represents EB-5 developers , regional centers and individual foreign investors , balances immigration and securities considerations , and litigates when necessary .
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1 A comparable change was made in RIA section 4 ( a )( 4 ) to INA § 216A ( b )( A ).