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June 16 2017

USCIS clarifies rules on redeployment of EB-5 capital

Today, the United States Citizenship and Immigration Services ("USCIS") issued a new draft policy manual which substantially changes their rules. USCIS now says no new I-526 will be required when the EB-5 capital is redeployed, provided that: 1) the first investment creates the needed jobs; 2) the new commercial enterprise (“NCE”) redeploys capital into a new investment; 3) the investment is within the scope of the NCE’s activities; and 4) the redeployment is within a commercially reasonable amount of time.

Furthermore, the new policy states that redeployment of capital that occurs before the immigrant investor becomes a conditional permanent resident must be adequately described in the Form I-526 record. Thus, for the investor’s pending I-526, an interfiled memo and evidence of the past project’s jobs creation, redeployment of funds and information about the new project will be required.

The new policy also states that during the conditional residence period, an investment may be further deployed in a manner not contemplated in the initial Form I-526, as long as the further deployment otherwise satisfies the requirement to sustain the capital at risk (i.e. not in a bank account). In addition, further deployment may be an option during the conditional residence period in various circumstances. For example, “further deployment may be possible in cases where the requisite jobs were created by the (first I-526) investment in accordance with the business plan, as well as in cases where the requisite jobs were not created in accordance with the original business plan, and even if further deployment had not been contemplated at the time of the Form I-526 filing.” Of course, if the jobs were not created with the first project, they must be created by the project to which the capital will be redeployed.

This is good news. I am glad we finally have some firm guidance. I spoke about this at an IIUSA conference in San Francisco about 3 years ago. I wish the policy manual went further and allowed the funds to be redeployed into U.S. Treasury Bonds.