One of the main requirements of the EB-5 Visa Investor Program is that an investor’s capital should be invested in an enterprise wherein the capital is “at risk.” As per program regulations, an investor has to present evidence that his capital is, or is in the process of being, placed “at risk,” not that he or she is planning to do it at some point in the future. Prospective plans to place capital at risk will not be sufficient. In addition, the evidence of the invested funds has to demonstrate that the whole amount of the capital is at risk. This means that part of the capital cannot be held in a reserve account or any other location not under the control of the enterprise. This particular requirement of the EB-5 program is an important indicator of an investor’s commitment and intention to invest in US economy and create jobs. Legislation does not say anything about necessary levels of risk. It merely mentions that the capital cannot be invested in projects with guaranteed return. Still, applicable regulations are clear that an investor’s capital will be not considered “at risk” in the event that he has a guarantee of return on even a portion of his funds. Taking this into account, we can suppose that the entire capital has to be at risk to some degree, but it is irrelevant whether the risk is minimal or significant. When the evidence demonstrates that the investor faces both a risk of loss and a chance of gain, the investment is considered to be “at risk.” The only source that provides more information regarding the “at risk” definition is USCIS’s appeals unit - Administrative Appeals Office (AAO). In several cases, the AAO was able to clarify when the degree of risk is considered insufficient and does not comply with EB-5 rules. In Matter of Izumi, the AAO found that “if the EB-5 investor is guaranteed the return of his or her investment in any amount, or guaranteed a rate of return on his or her investment, then the portion of capital that has a guarantee on it, is not at risk.” There cannot be guarantee on return of an investment amount, as there must be a possibility of loss of the capital. The AAO also stated, “setting aside funds in a passive investment reserve account did not constitute at risk.” The rationale behind this holding is the notion that businesses should have access to the full amount of the capital needed for creation of jobs required by the program. The capital is also not considered “at risk” if the amount is kept in a secure bank account and investor has full access and control over it. This rule has been made clear in Matter of Ho. It would not be sufficient to transfer part of the amount from the bank account into a business, as there should be a proof that the capital is actually being used in the business activity of the commercial enterprise. The regulations provide examples of documents that may be submitted to show that the investment is actually being used for business activity of the commercial enterprise. Some of these include bank statements showing amounts deposited into the US business account, evidence of assets purchased for the US enterprise, and evidence of property transferred for use in the US enterprise, among others. When the EB-5 investor demonstrates that his or her entire investment is actually being used in the US enterprise and there is not guarantee of the investment’s return, then the EB-5 investor can prove the investment is “at risk.”
