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'At Risk’ Requirement

EB-5 investment capital must be “at risk” in an investment with a “risk for loss and a chance for gain.”

There can be no guaranteed returns of any portion of the EB-5 capital. Further, the investor may not be guaranteed “the right to eventual ownership or use of a particular asset in consideration of the investor’s contribution of capital into the new commercial enterprise.”

Purchasing a share of a business from an existing shareholder does not qualify as an at-risk investment as the payment goes to the shareholder and not to the new commercial enterprise.

Sustainment period

EB-5 capital must be sustained 'at risk' for two years after I-526 application is file or may be interpreted by USCIS to require sustainment for two years after investment capital is deployed into the JCE. Current policy is unclear.

Prior to RIA

The EB-5 Reform and Integrity Act of 2022 (RIA) maintains the pre-RIA sustainment period for pre-RIA investors and changes the sustainment requirements for post-RIA investors.

Investors who filed their I-526 petition prior to the enactment of the RIA on March 15, 2022, must keep sustaining their investment in the new commercial enterprise until the end of the two-year conditional residency period.

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