This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.
U.S. Citizenship and Immigration Services (USCIS) issued a policy alert on July 24, 2020, that provides “clarifying guidance” included in the USCIS Policy Manual regarding the deployment of investment capital, including further deployment after the job creation requirement is satisfied. USCIS said the clarifications apply to all Form I-526 and I-829 petitions pending on or after July 24, 2020. The guidance:
- clarifies requirements for deployment of capital generally, including providing new language regarding the deployment of capital through any financial instrument that meets applicable requirements as well as explaining how the purchase of financial instruments on the secondary market will generally not satisfy such requirements.
- clarifies that capital may be further deployed into any commercial activity that is consistent with the purpose of the new commercial enterprise to engage in the ongoing conduct of lawful business. USCIS said this clarification “is meant to address potential confusion among stakeholders regarding prior language about the ‘scope’ of the new commercial enterprise while remaining consistent with applicable eligibility requirements.”
- provides that further deployment must be through the same new commercial enterprise.
- provides that further deployment must be within the geographic area of the same regional center, including any amendments to the regional center’s geographic area approved before the further deployment.
- explains that, based on an internal review and analysis of typical EB-5 capital deployment structures, USCIS generally considers 12 months as a reasonable amount of time to further deploy capital, but will consider evidence showing that a longer period was reasonable.