When Can EB-5 Investors Get Their Money Back? Sustainment Rules After the RIA

In EB-5 practice, investors often ask two different questions as if they were the same question. The first is: When can I get my money back? The second is: When will USCIS consider my investment properly sustained?

After the EB-5 Reform and Integrity Act of 2022 (“RIA”), this issue became more important for regional center projects. The RIA added statutory language in INA § 203(b)(5)(A)(i) requiring EB-5 capital to be “expected to remain invested for not less than 2 years.” But that does not mean every post-RIA investor automatically has a two-year loan term, or that funds can be returned after two calendar years regardless of project status, job creation, or offering-document restrictions. The safer way to understand the post-RIA rule is this: the statute created a minimum immigration sustainment period, but the investment must still be real, committed, exposed to risk, and consistent with the project’s immigration and securities documents.

At Risk

The RIA did not eliminate the traditional at-risk requirement. The statute requires the investor to have invested, or be actively in the process of investing, the required capital in a new commercial enterprise (“NCE”). The regulation then explains what this means in practical terms: the petition must be accompanied by evidence that the investor has placed the required amount of capital “at risk for the purpose of generating a return on the capital placed at risk.” 8 C.F.R. § 204.6(j)(2). As explained, EB-5 is not satisfied by an investor’s intent to invest. It is also not satisfied by a paper arrangement with no present commitment of capital. The same regulation provision expressly states that evidence of “mere intent to invest” or prospective investment arrangements with no present commitment will not suffice.

This means the investor must show that the capital has moved beyond personal control and has been committed to the NCE in a way that exposes it to the possibility of gain or loss. The investment does not need to be reckless, but it cannot be guaranteed, insulated from loss, or structured as a disguised redemption. A guaranteed return of capital, mandatory redemption right, or investor-held put right turn the transaction away from an investment and into a fixed repayment arrangement. 

The regulations give examples of evidence that may show the required capital has been invested or is actively in the process of being invested. These include bank statements showing deposits into U.S. business accounts for the enterprise, evidence of assets purchased for use in the enterprise, evidence of property transferred from abroad, stock purchase or investment agreements, and loan or mortgage documents where the investor is personally and primarily liable and the debt is secured by the investor’s own assets rather than assets of the NCE. 8 C.F.R. § 204.6(j)(2)(i)–(v).

That said, for regional center projects, this evidence usually appears in a different form. For RC context, the investor contributes capital to the NCE, which then deploys the capital to the job-creating entity (“JCE”), usually through a loan, equity investment, or other financing structure. The JCE is the entity responsible for creating the jobs used to support the EB-5 petitions.

The documentation should therefore show two elements. First, the investor made a qualifying capital contribution to the NCE. Second, the NCE made the capital available for the job creating project in a manner consistent with the filed business plan and offering documents.

While not explicitly addressed in the statutes, money sitting in an NCE account may not be enough if it has not been committed to the project in a way that supports job creation. Conversely, once the funds are properly deployed into the project, the investor does not need to control how each dollar is spent day-to-day. The immigration focus is whether the investor’s capital was actually committed to the EB-5 enterprise and exposed to qualifying business risk.

Sustainment

Before the RIA, practitioners often described sustainment by reference to the investor’s two years of conditional permanent residence. The I-829 regulation still uses that language, stating that the investor will be considered to have sustained the required actions if the investor, in good faith, substantially met the capital investment requirement and continuously maintained the capital investment over the two years of conditional residence. 8 C.F.R. § 216.6(c)(1)(iii).

Post-RIA, however, the statute now says the capital must be “expected to remain invested for not less than 2 years.” INA § 203(b)(5)(A)(i). USCIS has interpreted that post-RIA two-year period to begin, generally, when the full amount of the qualifying investment is made to the NCE and placed at risk under applicable requirements, including being made available to the JCE as appropriate. As such, for post-RIA investors, the two-year investment period is not necessarily tied to the date the investor becomes a conditional permanent resident. In many regional center cases, the relevant date will be tied to when the investor’s full capital contribution is placed at risk and made available to the job-creating project.

This point should be handled carefully. The USCIS interpretation does not mean that any investor can file an I-526E, wait two years, and automatically withdraw funds. If the full investment was not yet made, if the funds were not placed at risk, if the funds were not made available to the JCE where appropriate, or if the job-creation requirements are not satisfied, repayment may still create immigration risk. The offering documents may also impose a longer lock-up period than the immigration minimum.

As such, while the post-RIA statute creates a two-year minimum investment period, the project documents should explain when that period is expected to begin, how the capital will be deployed, what events permit repayment, and how the structure preserves EB-5 eligibility.

Meanwhile, a two-year minimum investment period does not erase the separate I-829 requirements. At I-829, the investor must show that the required capital was invested and that the required employment has been created, or that the investor is actively in the process of creating the required employment and will create it before the third anniversary of becoming a conditional permanent resident, provided the capital remains invested during that time.

If job creation is not yet complete, the capital may need to remain invested longer because the investor is still relying on future job creation. In that situation, repayment after two years may be difficult to reconcile with the investor’s need to show that the required jobs are still being created.

Overall, the post-RIA analysis has two layers.

First, has the investor satisfied the minimum two-year investment requirement under INA § 203(b)(5)(A)(i)?

Second, has the investor satisfied the I-829 job-creation requirement under INA § 216A?

A project may be able to satisfy the first question before it satisfies the second. That is why the project documents should avoid saying that investors are automatically entitled to repayment after two years. The cleaner rule of thumb is that repayment may be permitted after the immigration sustainment requirement is satisfied, subject to job-creation requirements, USCIS policy, the project documents, available cash, lender restrictions, and applicable securities obligations.

Redeployment

Lastly, redeployment became a major EB-5 issue because regional center projects often repay the NCE before investors are ready to receive their green cards or file I-829. The RIA now expressly addresses redeployment for regional center investments.

The statute directs DHS to allow an NCE to redeploy investment funds anywhere within the United States or its territories for the purpose of maintaining the investors’ capital at risk, but only if certain conditions are met. INA § 203(b)(5)(F)(v)(I). Those conditions include that the NCE executed the business plan in good faith without a material change, created enough new full-time positions for all investors in the NCE, received repayment of the initially deployed capital from the JCE in conformity with the initial investment contemplated by the business plan, and kept the repaid capital at risk without redeploying it in passive investments such as stocks or bonds.

This statutory language is helpful, but it is not a blank check. Redeployment must still preserve the at-risk nature of the capital and must also be documented. The NCE should be able to show when the JCE repaid the original investment, where the capital went next, what commercial activity the redeployment supported, and why the redeployment was not merely a passive holding arrangement.

This is especially important in regional center cases. Regional centers must report, among other things, an accounting of investor capital invested in the regional center, NCE, and JCE; a description of how the capital is being used to execute each capital investment project; evidence that the capital has been committed to the project; and detailed evidence of progress toward completion. INA § 203(b)(5)(G)(i)(VI). Such annual reporting obligations reinforce the same basic point: the movement and use of EB-5 capital should be traceable.

Documentation

Even if the post-RIA two-year period may be satisfied before I-829, the investor still needs a record. The I-829 petition must contain facts and information showing that the investor invested the required capital, created or is actively creating the required employment, and is otherwise conforming to the EB-5 requirements. INA § 216A(d)(1)(A)–(C).

For at-risk and sustainment purposes, the project should be prepared to document the investor’s subscription, capital transfer, escrow release, admission to the NCE, deployment to the JCE, project use of funds, any repayment from the JCE to the NCE, and any redeployment. If the capital was returned before I-829, the record should explain why the return did not violate the post-RIA sustainment requirement or the job-creation requirement.

Regulatory evidence may include bank statements, invoices, receipts, contracts, business licenses, income tax returns, and quarterly tax statements. In a regional center case, the practical evidence will usually also include NCE ledgers, JCE loan or equity documents, draw records, capital account statements, project expenditure records, repayment notices, redeployment approvals, and fund administration records.

The point is not simply to show that money moved. The record should show that the investor’s capital was placed at risk in the NCE, made available to the job-creating project as appropriate, remained invested for the required period, and was not returned or protected in a manner inconsistent with EB-5 eligibility.

After the RIA, the at-risk analysis is more structured but not necessarily simpler. The statute now provides a two-year minimum investment period, and USCIS currently interprets that period as beginning when the full qualifying investment is made to the NCE and placed at risk, including being made available to the JCE as appropriate. That is a major change from the older habit of tying sustainment to conditional residence alone.

But the fundamentals remain the same. EB-5 capital must be actually committed. It must be exposed to risk. It must be used consistently with the project’s immigration theory. If repaid and redeployed, it must remain at risk and avoid passive investments. And if job creation is not complete, capital-return decisions must be analyzed against the I-829 requirements, not just the two-year investment language.

For regional center projects, the safest approach is to draft the investment documents, business plan, redeployment authority, and I-829 evidence plan together. The at-risk requirement is not satisfied by a single sentence in the PPM. It is proven by the structure of the transaction and the paper trail showing where the investor’s capital went, how it was used, and when the EB-5 requirements were met.

Plain English Summary

To get an EB-5 visa, you put money into a U.S. business and leave it there for at least two years. Under the new 2022 law, that two-year clock starts when your money actually goes into the project, not when you get your green card.

But two years does not automatically mean you get your money back. If the project has not yet created enough jobs, your money may need to stay in longer. The project documents may also have their own rules about when repayment is allowed.

If the project pays your money back early, it cannot just sit in a bank account. It has to go into another active business investment. Stocks, bonds, or anything passive does not count.

Bottom line: two years is the minimum, not a guarantee. If jobs are not done, the money stays in. If the money comes back early, it has to be reinvested into something real.

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Disclaimer: This article provides general information and should not be construed as legal advice. For guidance tailored to your specific circumstances, please consult with a qualified immigration attorney.