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be repaid to the new commercial enterprise before or during the period of conditional permanent residency. This presents unique issues, because according to Matter of Izummi and the May 30, 2013 EB-5 Adjudications Policy Memorandum, an EB-5 applicant must place his or her investment“ at risk” for the purpose of generating a return during the period of conditional permanent residence.
It is not clear what position USCIS would take at the I-829 stage if the investment amount is repaid to the new commercial enterprise during the period of conditional permanent residency for an investor. Fortunately for this investor, his partnership made an equity investment into a project, and thus, his investment remained outstanding throughout his eight-year process. If the partnership had made a loan, this investor would have had another hurdle to overcome at the I-829 stage.
The permanent green card
Despite the myriad of issues involved in this case, the investor achieved unconditional permanent residence in 2014. Eight full years passed from I-526 petition filing to I-829 petition approval. While this case presented challenges at every step and as a result was severely delayed it highlights the importance of keeping an eye towards the future when preparing each step in an EB-5 investor’ s journey and employing creative strategies when necessary.
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Kate Kalmykov
Dillon Colucci
Kate Kalmykov is a shareholder at the NYCarea offices of Greenberg Traurig, LLP. Kate handles a range of immigration cases, but is particularly involved in the firm’ s EB-5 practice, where she works with investors, regional centers and developers. In addition to providing a full scope of legal services for EB-5 participants, Kate is a respected speaker and regularly blogs on EB-5 issues. She is a founding member of The EB-5 Immigration Coalition.
Dillon Colucci is an associate in Greenberg Traurig’ s Irvine, Calif. office. In the EB-5 realm, Dillon works extensively with investors, regional centers and developers. Employment-based immigration cases are the focus of his practice and he works as part of the firm’ s dedicated EB-5 team.
To protect the privacy of the investor, identifying details have been removed.
34 EB5 Investors Magazine