IN THIS GUIDE · Identify who controls a proposed EB-5 buyback right
Start with the EB-5 eligibility and application overview
Read the investor’s rights in the operative documents
The statute excludes capital subject to an investor’s contractual repayment right, including mandatory redemption or an investor-held put or sell-back option, even when contingent on enterprise success such as available cash flow. Do not assume a liquidity condition makes an investor-controlled repayment right acceptable. Ask for every side letter, subscription exhibit, email commitment and marketing statement that addresses liquidity. The decision is based on enforceable rights and the full transaction, not on a label such as redemption, protection or anticipated exit.
Assess the enterprise-only exception precisely
The statute separately addresses a buyback option exercisable solely at the new commercial enterprise’s discretion. Its conditions include withdrawal of the petition unless the investor has fulfilled the sustainment period and other EB-5 requirements. Do not describe any enterprise buyback as automatically harmless, or collapse that exception into an investor’s right to demand payment. Read the enterprise’s option together with the consequence of exercise and the investor’s sustainment obligations. The practical question is whether the documents reserve discretion to the enterprise in the required way, rather than merely delaying a right that belongs to the investor.
Keep the remaining investment criteria
Current general thresholds are US$1.05 million or US$800,000 for a qualifying targeted-employment-area or infrastructure case, with statutory adjustments beginning January 1, 2027 under applicable filing-date rules. Establish lawful source and path, at-risk capital, ten qualifying full-time jobs per investor and management or policy participation. Reviewing an exit clause does not resolve every other requirement. Keep bank records, sale documents, tax records and transfer confirmations in a dated source-and-path file. Separately obtain the business plan and job evidence that identify how ten qualifying full-time jobs for this investor will be created and allocated.
Separate commercial exit from removal of conditions
Conditional residence starts with applicable immigrant admission or adjustment approval; I-829 is generally filed in the 90 days before its second anniversary. Filing I-829 does not itself authorize every capital return or satisfy every sustainment question. Have the actual investment and immigration consequences assessed before relying on a planned buyback. Set calendar reminders for the conditional-residence milestone and preserve proof of the continuing investment and employment activity as it is generated. The decision is whether an anticipated return of funds would conflict with a still-pending immigration obligation, not simply whether the commercial term has arrived.
Account for qualifying capital rather than total deal cost
EB-5 preparation should distinguish the number of qualifying full-time positions from a total of hours paid, using the methodology permitted for the actual case. The capital must be placed at risk with no guaranteed return, and the investment must create at least ten full-time positions for qualifying U.S. workers per investor, counted directly or, in a regional-center project, under the approved economic methodology.
Sources reviewed 2026-09-07. This guide covers a preparation focus; it is not an individual eligibility assessment.