EB-5 Q&A: Which banks have flexible early release terms when the offering contains non-escrow investor protections for possible I-526 denial?



Usually, EB-5 investment funds will be held in an escrow account until the I-526 petition get approved, at which time funds will be released to the project.  Depending upon the terms of the escrow agreement, and generally, if an I-526 petition were denied, banks would be liable to return investor’s fund if denial were no fault of the investor.  Some escrow agreements terminate after the first 5 or 10 Form I-526 petitions are approved.  Thereafter all invested funds go directly to the EB5 program enterprise.  Some EB5 programs direct funds directly to the enterprise and entail no escrow account.   Upon filing the I-526 petition, the investor attests to having invested in the enterprise and the funds are at risk.  Therefore, if the funds have been released to the enterprise under one of the above scenarios, there is no refund of the invested funds.  Banks do not control when funds are released to the enterprise.   The negotiated escrow agreement, if any, controls release of funds.