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'At Risk' Defined by Michael Harris

Michael Harris: At risk means that you have made an irrevocable investment into a new commercial enterprise that shows that you have made an investment that you cannot redeem during the time that you're a lawful permanent resident, at least until your I-829 may be filed. But essentially, the at-risk requirement means that you don't have the ability to seek a redemption to get a return of your investment capital back to you while you are under your sustainment period as an EB-5 resident, typically that's two years.

Michael Harris: Once the I-829 is filed, the petitioner, the investor may be able to seek to withdraw from the investment, but essentially at risk means that there is no predefined redemption agreement that will allow the investor to exit the project or the business and seek a return of their capital. 

At risk means also that they have a chance of gain. That not just that they're going to potentially lose their money, which is obviously not the objective, they want to create jobs and want to have a good exit strategy in return on their investment. But the government also would like to see that there is the opportunity to earn capital gain on the project investment that they've made. 

So if the project has made a redemption agreement where they've assigned a particular value and a particular timeframe when the investor can exit the project, usually it's at the demand of the investor sometimes, that would be the prima facie evidence that the investor is not at risk because the project has told them when they no longer have to be at risk based on maybe a particular timeframe of say, five years or so on. Those are generally big warning signs of when someone is maybe not at risk in the potential project that they've invested in.

There is no requirement that says the investor has to make a foolish investment decision. The investor can invest wisely based on choosing the right project. So I think that's not something really that the immigration agency goes over too deeply in terms of whether or not the project has ultimately no risk at all, but I think that it's a case by case situation.

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