EB5 INVESTORS M AGAZINE
8
R edeployment L essons L earned :
H ow to P rotect EB-5 I nvestors &
R educe L itigation R isks to EB-5 S ponsors
To avoid litigation, sponsors should use an independent review process, consider a reinvestment
with the same developer, follow the EB-5 fund’s governing documents and allow EB-5 investors who are
eligible to receive a return of their capital.
By Catherine DeBono Holmes & Ronald R. Fieldstone
A
lmost two years after USCIS adopted Policy
Manual changes on June 14, 2017, requiring
redeployment of capital contributions of EB-5
investors until the end of their two-year period of
conditional permanent residency, a number of EB-5
investment funds have redeployed capital into new
investments. Many more will do so in the future, as the
original job-creating projects are sold or refinanced.
USCIS has offered no further clarification of the
ambiguous statements made in the Policy Manual
2017 regarding redeployment, and there are still
unanswered quest ions from an immig rat ion
p er sp e c t ive reg a rd i ng t he st a nda rd s t hat w i l l
be appl ied by USCIS i n deter m i n i ng whet her a
reinvestment is “within the scope of the business” of
the EB-5 investment fund.
This article discusses the potential concerns by EB-5
investors in connection with redeployment, which
in some cases can result in litigation or threats of
litigation against EB-5 fund sponsors, and the means
by which sponsors should seek to address these
concerns and thereby reduce their risks of litigation.