In late July, USCIS issued an update to the Policy Manual on the topic of ‘redeployment’ in the EB-5 context. The short idea is that, by law, investors must sustain their investment until at least the time at which they file Form I-829. The issue is that, due to visa backlogs for countries like China, that might be a really long time – longer than the lifecycle of a typical real estate investment. USCIS is now saying how this money must be re-invested (or redeployed) through the time of I-829 filing. The biggest shock or surprise here is less the policy itself, and more that USCIS issued it retroactively. There is likely to be litigation over whether this was proper.

The new clarifications or rules are:

Redeployment must be made through the original NCE.
The redeployment is not required to be in a Targeted Employment Area. This is probably good, though it is unclear what happens if the original investment failed to produce enough jobs – does the redeployment then need to be in a TEA? Not clear.
Any redeployment must be within the jurisdiction of the originally sponsoring regional center as of the time of redeployment. Given processing times for I-924’s, this is going to be tricky. There’s a high likelihood of litigation on this.
Redeployment should occur within a “commercially reasonable time,” which USCIS now states is understood to be a year.
The redeployment must involve “commercial activity” and must not involve purchase of financial instruments on the secondary market. This also probably will be tested in court. People in the industry have promoted solutions that are outside of this requirement (not maliciously, of course) in recent years, so this throws a wrench in those plans.
There is no restriction on the business in which the redeployment is made – meaning, an original real estate investment that was returned need not be redeployed in another real estate investment.