If you’re considering an EB5 investment as your path to US green cards for you and your family, you’ve likely come across one critical requirement: your investment must be “at risk.” For many investors, this raises a lot of questions regarding whether they could lose their $800,000, whether anything can be guaranteed, and if there is any protection at all.
The good news is that while the EB5 program doesn’t allow a guaranteed return on your investment, certain types of guarantees are allowed—and they can provide important peace of mind.
Let’s break down the permissible guarantees clearly and simply so you can move forward with your EB5 application with confidence.
What “At Risk” Really Means
Under EB5 regulations, your investment—$800,000 in a qualifying targeted employment area (TEA)—must be actively invested in a business with the goal of generating a return and creating new US jobs. That means the capital must face some risk of loss and potential for gain, just like any normal business investment.
However, this requirement does not mean that you have to accept total uncertainty. USCIS (US Citizenship and Immigration Services) does allow some protections, as long as they don’t eliminate that investment risk. Here are three permissible guarantees, followed by an explanation of what is not permissible.
1. I-526E Denial Refund Guarantee
The I-526E denial refund guarantee is one of the most investor-friendly, USCIS-compliant guarantees out there.
If USCIS denies your EB5 petition (Form I-526E), many EB5 projects can legally guarantee you a full refund of your $800,000 investment. Why? Because the EB5 program isn’t about the performance of the investment—it’s about your eligibility for the visa.
This refund guarantee gives you a crucial safety net at the earliest and most uncertain stage of your EB5 journey. If something in your application results in a denial, you won’t lose your investment because of it.
2. Borrower Guarantee to Repay the Loan
Most EB5 investments follow a “loan model,” where your investment goes into a fund (called the “new commercial enterprise,” or NCE), which then loans the money to a job-creating project—like a real estate development.
In this structure, the borrower (usually the project developer) can legally guarantee they will repay the loan to the NCE.
This doesn’t mean you’re guaranteed to get your money back, but it does mean that the fund you have invested in as a limited partner has a contractual promise of repayment, which strengthens the financial foundation of the project and adds another layer of security.
3. Construction Completion Guarantee
Let’s say your EB5 funds are helping to build a hotel, apartment complex, or renewable energy facility. What happens if construction stops halfway through?
Many top-tier EB5 projects offer a construction completion guarantee—a contractual promise (often backed by a parent company or insurance company) that the project will be completed on time and within budget.
Why does this matter to you? Because the project must create 10 full-time US jobs per investor for your green card to be approved. If the project is never finished, those jobs might not materialize—and your immigration status could be at risk.
This guarantee helps ensure that the job-creating project actually gets done, giving you more certainty that your investment will meet EB5 job creation requirements.
What’s Not Allowed: A Guarantee of Return
Here’s what’s not allowed: a promise by the EB5 fund (NCE) to return your $800,000 after a certain number of years, no matter what happens. That type of promise would eliminate risk, which USCIS strictly prohibits.
If a project or fund offers this kind of guarantee, it’s a major red flag. It could lead to denial of your petition and potentially put your immigration status in jeopardy.
In addition, the EB5 fund is not allowed to guarantee any other nonfinancial benefit, such as ownership of real estate or, if the construction project is (for example) an apartment building or hotel, staying there for free or at a reduced rate.
Balancing Risk and Confidence
The bottom line is, yes, the EB5 program requires your capital to be “at risk,” but that doesn’t mean you have to enter the EB5 process blindly. When structured properly, permissible guarantees can help protect you from immigration setbacks, improve the financial security of the EB5 project, and provide confidence that your investment is doing what it’s supposed to: creating jobs and supporting your path to permanent residency.
