The at-risk requirement bars EB-5 capital from being structured as a guaranteed-return debt instrument or held in escrow indefinitely, and in the current adjudication environment USCIS is re-examining a wide range of pre-existing project structures, including some that previously cleared without comment, on the theory that they fail the Matter of Izummi standard.
The at-risk requirement is anchored in 8 C.F.R. § 204.6(j)(2), which provides that to qualify, an investor must demonstrate that the petitioner's capital "is at risk for the purpose of generating a return on the capital placed at risk." The seminal decision interpreting this regulation is Matter of Izummi, 22 I&N Dec. 169 (Assoc. Comm'r 1998), which held that capital is not at risk where the investment includes any guaranteed return of principal, mandatory redemption rights, or debt-like features that secure the investor's capital regardless of the project's economic performance. Izummi's holding is the operative case-law standard at every adjudication stage from I-526E through I-829.
The statutory basis traces to INA § 203(b)(5)(A)(i), which conditions EB-5 eligibility on capital that the investor has invested in a new commercial enterprise and which provides the post-RIA sustainment language: capital must remain "expected to remain invested for not less than 2 years," interpreted by USCIS (in non-regulatory web guidance, December 2023) to require that the investment is committed in a way that exposes it to risk of loss for the sustainment period. The EB-5 Reform and Integrity Act of 2022 preserved the at-risk requirement and codified additional structural rules around redeployment, sustainment timing, and reporting. Adjudicator guidance lives in USCIS Policy Manual Vol. 6, Part G, Chapter 2, with detailed application of Izummi and the at-risk framework.
The interpretive ambiguity in this area concerns the boundary between equity-with-preferred-return structures (which historically cleared) and debt-like preferred returns (which fail under Izummi). USCIS has tightened that boundary in 2025-2026 RFEs and NOIDs, and AILA practitioners have flagged some of the agency's more recent analytical moves, including arguments about the relationship between loan interest rates and NCE return rates, as legally incoherent but currently being raised in adjudication. The at-risk framework should therefore be read as a stable statutory and regulatory anchor with a moving interpretive frontier.
USCIS analyzes at-risk along several axes. The first is redemption and mandatory repayment: any structure that requires the new commercial enterprise to return the petitioner's capital at a date certain, or upon a triggering event the investor controls, fails Izummi. Subscription agreements with put rights, redemption clauses tied to I-526E or I-829 outcomes, or NCE operating-agreement provisions guaranteeing principal repayment are now routinely flagged in RFEs.
The second axis is escrow. Capital held in escrow pending I-526E approval is not yet at risk because the investor retains a right to refund if the petition is denied. Escrow structures remain common as a refund-on-denial protection, but the at-risk clock does not begin until the funds are released to the NCE and made available to the job-creating entity. Practitioners typically document the escrow release explicitly, with bank records, escrow-agent confirmations, and an updated subscription posture, to establish the at-risk start date for the post-RIA two-year sustainment.
The third axis is chance of gain. Izummi requires both a risk of loss and a corresponding chance of gain. USCIS has historically read this as requiring that the investor's economic upside be tied to the project's performance rather than fixed in advance. AILA practitioners have flagged a recent USCIS argument, raised in some RFEs, that an 11-12% loan interest rate paid by the JCE to the NCE, paired with a 1% return passed through to the investor, defeats the chance of gain by removing any meaningful upside. Practitioners describe this as legally incoherent (the chance-of-gain analysis has historically focused on the structure of the investor's position, not the rate-arithmetic of the loan), but it is being raised, and responses typically address it on the merits while preserving objections to the framing.
The fourth axis is redeployment. Where capital is returned to the NCE before the sustainment period ends (because, e.g., a loan from the NCE to the JCE matures), the at-risk requirement requires that the capital be redeployed within "a reasonable amount of time" (interpreted in USCIS Policy Manual Vol. 6, Part G, Chapter 2 § A.2 as approximately twelve months) into another commercial activity within the same NCE. Pure secondary-market trading of financial instruments generally does not satisfy at-risk under the policy manual; the redeployment must constitute "actual undertaking of business activity." We address redeployment in detail on a separate topic page.
The fifth axis is the adjudication climate. Several climate factors compound the analysis. Affiliated-entity loans from RC-related parties were paused industry-wide in summer 2025, with USCIS issuing thirty-page NOIDs and revocations even on previously approved petitions. The CISNA / EDLO directive, reinstituted in June 2025, instructs officers to deny in close cases rather than RFE. 8 C.F.R. § 103.2(b)(1), the "approvable when filed" standard, is being applied to at-risk defects rather than left to RFE-curing. The interpretive frontier on preferred-return and loan-back structures is moving, and prior approvals on similar structures are not deference-binding on later adjudicators.
How any particular structure is analyzed is decided case-by-case by the adjudicating officer, and outcomes turn on the entire deal documentation, the operating posture of the NCE and JCE, and the narrative coherence of the at-risk showing.
The patterns below describe documentation that AILA practitioners have observed supporting approval in prior cases. None is a guarantee; each is a frame for what tends to read as filing-grade.
- Subscription agreement showing equity (or qualifying loan) flow. The subscription agreement typically establishes that the investor is acquiring a membership interest in the NCE (or, in qualifying loan structures, lending to the NCE on bona fide terms), with no redemption right tied to I-526E or I-829 outcome and no guaranteed return of principal. Practitioners typically pair the subscription agreement with the NCE operating agreement to show the absence of preferential redemption or principal protection. Whether any subscription posture satisfies Izummi is decided case-by-case by the adjudicating officer.
- Private placement memorandum (PPM) with explicit risk disclosures. A PPM disclosing the project's commercial risk, the absence of guaranteed returns, and the investor's exposure to loss has supported at-risk findings in prior cases. The risk-disclosure section typically describes the investment as speculative and identifies specific risk factors (project completion, market risk, operating risk, regulatory risk). Whether the PPM is sufficient is decided case-by-case.
- NCE operating agreement consistent with at-risk. The NCE operating agreement should not contain redemption rights tied to immigration outcomes, mandatory distributions of principal, or other features that would re-characterize the investor's position as debt-like. Practitioners typically review the operating agreement in conjunction with the subscription agreement to identify any provisions that Izummi would treat as defeating at-risk. Whether the operating agreement is consistent with the at-risk requirement is decided case-by-case.
- JCE-level loan documentation (where the NCE loans to the JCE). In regional-center pooled structures where the NCE loans pooled capital to the JCE, the loan agreement typically reflects bona fide loan terms (reasonable interest, defined maturity, default and remedy provisions, collateral or unsecured posture as the structure permits). The JCE loan does not need to mirror the investor's at-risk posture in the NCE, but inconsistencies between the two layers (e.g., the investor holds equity in the NCE while the NCE makes a loan to the JCE that mandates repayment to the NCE on a fixed timeline) typically require explicit treatment in the cover narrative. Whether the two-layer structure satisfies Izummi is decided case-by-case.
- Redeployment plan documentation where the project will likely return capital before sustainment ends. Where the project's capital lifecycle is shorter than the sustainment period (especially for backlogged investors whose conditional residence may not begin for years), a redeployment plan typically accompanies the I-526E filing. The plan describes the redeployment criteria, the same-NCE constraint, the commercial-activity (rather than secondary-market) posture, and the regional center's role. We address redeployment in detail on a separate topic page; the I-526E plan documentation is one of the several inputs into the at-risk analysis.
- Bank records and capital-flow documentation. Documentation of the actual capital flow from the investor through the NCE (and, where applicable, onward to the JCE) tends to be reviewed alongside the structural documents. Practitioners typically include subscription-agreement confirmations, escrow-release records (where escrow was used), wire records, and NCE bank statements showing the deployment of capital. Whether the capital-flow record is adequately documented is decided case-by-case by the adjudicating officer.
Loan-back arrangements. The officer asserts that a structure under which the JCE loans capital back to the investor (or to a related party of the investor) defeats at-risk because the investor's capital is effectively returned to the investor's control. Practitioners typically respond by re-examining the structure, documenting any independence between the loan-back recipient and the investor, and where the structure does not survive scrutiny, advising the client of material-change risk if the structure is unwound mid-case. Whether the response is sufficient is decided case-by-case.
Preferred-return structures resembling debt. The officer argues that a "preferred return" provision in the NCE operating agreement, particularly where the preferred return is fixed in amount and senior to other distributions, re-characterizes the investor's position as debt-like and fails Izummi. Practitioners typically respond by distinguishing the preferred return from a debt instrument (no maturity date, no mandatory repayment of principal, subordination to project risk) and where appropriate by amending the operating agreement to remove provisions that adjudicators have read as debt-like. Whether the distinction is accepted is decided case-by-case.
Capital still in escrow. The officer treats capital held in escrow at the time of I-526E adjudication as not yet at risk for sustainment-period purposes. Practitioners typically respond with escrow-release records, NCE bank statements showing receipt, and where the escrow release was conditioned on I-526E approval, an updated subscription posture demonstrating that the funds have moved to the NCE and onward to the JCE. Whether the escrow-release timing is sufficient is decided case-by-case.
Affiliated-entity loan structures. The officer issues a thirty-page NOID or revocation on a structure in which the loan from the NCE to the JCE involves entities affiliated with the regional center, even where the structure was previously approved on similar facts. AILA practitioners describe the affiliated-loan posture as effectively paused industry-wide as of summer 2025. Practitioners typically respond by documenting the bona fides of the affiliated-loan terms, the independence of the parties, and the at-risk character of the investor's underlying position, but the climate is currently adverse. Whether the response is accepted is decided case-by-case by the adjudicating officer.
Loan-interest-vs.-NCE-return arguments. The officer asserts that an 11-12% loan interest rate paid by the JCE to the NCE, paired with a 1% return passed through to the investor, defeats chance of gain. AILA practitioners describe this argument as legally incoherent (the chance-of-gain analysis under Izummi has historically focused on the structure of the investor's position, not the loan-rate arithmetic), but it is being raised. Practitioners typically respond by addressing the at-risk character of the investor's NCE position on its merits, documenting the speculative nature of the project's economics, and preserving an objection to the framing. Whether the response is accepted is decided case-by-case.
Secondary-market redeployment. The officer rejects a redeployment into a financial-instrument trading position on the ground that Izummi and the USCIS Policy Manual require redeployment to consist of "actual undertaking of business activity," not pure secondary-market trading. Practitioners typically respond by re-characterizing the redeployment as a commercial activity within the NCE, documenting the operating posture of the redeployment vehicle, and where the redeployment cannot be re-characterized, advising the client of the at-risk consequence. Whether the redeployment satisfies the policy manual is decided case-by-case.
The at-risk requirement intersects with several strategic decisions investors make at intake and after I-526E approval.
Read the subscription agreement and operating agreement together. Investors sometimes focus on the subscription agreement (which identifies them as a member or limited partner) without examining the NCE operating agreement, where the at-risk-relevant terms (preferred return, redemption, distribution waterfall) typically live. The cautious diligence practice is to review both documents together, with attention to any provision that Izummi would read as defeating at-risk. Where a regional center is unwilling to amend a provision that reads as debt-like, that posture is itself a piece of information about the project's posture and the regional center's response to current adjudication trends.
Avoid affiliated-entity loan structures in the current climate. Loans from the NCE to JCE entities affiliated with the regional center were a common pre-2025 structure in some pooled deals. As of summer 2025, USCIS has been issuing thirty-page NOIDs and revocations on these structures, including on previously approved petitions. Investors evaluating projects in 2025-2026 should ask the regional center directly whether the JCE loan involves any affiliated entity and how the regional center has responded to recent USCIS pressure on those structures. Whether a particular affiliated-loan structure will survive in the current climate is decided case-by-case, but the adjudication trend is adverse.
Plan for redeployment at I-526E, not at maturity. Backlogged investors (particularly from China and India for non-set-aside categories, and increasingly for set-aside categories as the rural backlog tightens) may face a situation in which the underlying loan or equity matures before the sustainment period ends. The practical implication is that redeployment planning should be part of the I-526E filing, not a question deferred to the date of maturity. The redeployment plan does not have to identify the specific subsequent project, but it should identify the redeployment criteria, the same-NCE constraint, and the commercial-activity posture. We address redeployment in detail on a separate topic page.
Distinguish at-risk from sustainment. At-risk and sustainment are related but distinct. At-risk is the structural requirement that the capital be subject to risk of loss and chance of gain (no debt-like features, no escrow holding, no guaranteed redemption). Sustainment is the temporal requirement that the at-risk posture be maintained for a defined period (pre-RIA: two years of conditional residence; post-RIA: two years from full deployment, per USCIS web Q&As, currently in litigation in IIUSA v. DHS). A structure that is at-risk at the I-526E stage but loses its at-risk character mid-sustainment fails the requirement; a structure that is at-risk for less than the sustainment period fails as well. We address sustainment in detail on a separate topic page.
Anticipate I-829 re-examination. Anything stated at I-526E becomes the evidentiary baseline for I-829. AILA practitioners describe I-829 at-risk re-examinations as routine in 2025-2026, often re-opening structural questions about the NCE-to-JCE loan or about preferred-return mechanics that adjudicators did not raise at I-526E. The cautious posture, in our experience, is to document at-risk in I-526E with the I-829 record in mind, not just the I-526E posture.
EB-5 approval rates have fallen materially over the past several adjudication cycles, and the rate at which USCIS issues Requests for Evidence, Notices of Intent to Deny, and direct denials has risen sharply. The June 2025 reinstitution of the CISNA / EDLO directive (instructing officers to deny rather than RFE in close cases) and the routine pairing of I-829 denials with Notices to Appear in removal proceedings are reshaping how EB-5 practice is done. Project structures that we and other firms saw approved without challenge two or three years ago are now drawing aggressive scrutiny, particularly on at-risk analysis of preferred returns, affiliated-entity loans, and redeployment plans, and some are being denied outright on records that, on their face, look as strong as records that previously cleared. Officers also vary considerably in how they apply discretionary judgments under the post-RIA framework. This climate is not unique to projects with non-traditional capital-stack structures, but it is real, and it informs how we counsel clients before, during, and after filing.
This page describes patterns we have seen across many petitions and project reviews. It is general information about how the at-risk requirement is typically analyzed, not a prediction about any specific case and not a representation that meeting any particular evidence pattern will result in approval. EB-5 outcomes turn on the entire record, the strength of the legal and factual arguments, the current adjudication climate, and the discretion of the adjudicating officer.
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