EB5 Investors Magazine "Top 25 issue" Volume 9 Issue 1 - Page 12

How long must you keep EB-5 capital at risk ?

How the EB-5 Reform and Integrity Act of 2022 changed the sustainment requirement .
By Robert C . Divine

The EB-5 Reform and Integrity Act of 2022 made a momentous change to the requirement to “ sustain the investment .” Investors who filed I-526 before enactment on March 15 , 2022 , must keep their capital invested with and through the “ new commercial enterprise ” ( NCE ) until the end of their two years of conditional permanent residence ( CPR ). Investors who filed after enactment must do so only for two years from investment .

When the EB-5 statute originally was enacted in 1990 , there were no expectations of lengthy adjudications or a wait for a visa number . Investors first would make the investment , file a petition , receive a speedy approval , process for an immigrant visa , and enter the U . S . as a conditional resident . All of that might take a year . After two years of conditional residence the investor would file Form I-829 to show that he had invested or was in the process of investing , had sustained the investment throughout the alien ’ s residence in the United States , and the investment created or was in the process of creating ten full-time jobs . Within a few months the I-829 would be adjudicated and the investor would be a normal conditional resident . The whole process might take 3 or 4 years . Not sure when the “ alien ’ s residence ” would be deemed to end , most projects planned to keep the capital invested for five years to cover even the I-829 adjudication .
Over time , USCIS adjudication time for Form I-526 slipped to a few years , and in about 2015 Chinese investors and a few from elsewhere began to use up more than the
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