Understanding the EB-5 Required Investment Timeframe

Posted on May 31, 2024 by Rakesh Patel and Jacqueline Trevino

The EB-5 application process begins with filing an I-526 or I-526E form with USCIS. To file, the investor must have already committed the required capital to a new commercial enterprise (NCE). The minimum investment amount is $1.05 million or $800,000 if the investment is made in a targeted employment area (TEA). The investment must be at risk, meaning there can be no guarantees of return on the investment funds. This ensures the funds are genuinely being used to promote economic growth.  

Changes with the EB-5 Reform and Integrity Act of 2022 (RIA)

Before the EB-5 Reform and Integrity Act of 2022 (RIA), investors had to sustain their investment throughout their conditional residence. The RIA now requires maintaining the investment for at least two years, if all job requirements are met. This change prevents extended investment periods due to factors like visa availability.



Calculation of the Two-Year Period

Although the RIA does not clearly state when the two-year period begins, USCIS has clarified it considers it to start on the date that the qualifying investment is made. This means that USCIS will use the date the funds were committed to the NCE and put at risk, as required, to calculate the required investment timeframe. This clarification helps investors plan their financial commitments and residency status more effectively. It also emphasizes the importance of ensuring that all source of funds documentation regarding the investment is accurate and complete to avoid any discrepancies during the USCIS review process.

Project Developer Requirements

Nonetheless, the project developer may require that the investment be maintained for longer than two years. This requirement can depend on the specific terms of the investment agreement and the nature of the project the investor invests in, ensuring the project’s financial stability and completion of the job requirements. Thus, it is crucial for investors to research the projects to ensure they are comfortable and confident in their investment choices.  Seeking advice from financial and legal professionals can help maximize the chances of a successful investment and petition.

If you have any questions about the EB-5 process, please email us at rpatel@patellegal.com and jtrevino@patellegal.com.