October 12, 2025 | By מייקל א

In 2018 I warned that some condominium developers were pairing unit sales with EB‑5 fundraising in ways that threatened the program’s core requirements: truly at‑risk equity, the no‑redemption principle, and transparent promoter and securities compliance. Seven years later, the same themes keep resurfacing. And today more and more Realtors® or real estate agents are found to be making such marketing such offerings. Marketing language has evolved, such as “live here while your EB‑5 is processed,” “buyers‑only participation,” “limited EB‑5 allocations for purchasers”, but the underlying pressure points remain constant. Post‑2022, the EB‑5 Reform and Integrity Act (RIA) raised the bar on audits, promoter registration, and disclosures. Yet the most problematic designs still rely on inducements offered because an investor chooses the EB‑5 security.

This update explains why those inducements are risky, how they commonly appear in the market, what changed since 2018, and what a compliant architecture actually looks like when a project insists on selling condos while raising EB‑5 capital.

The Baselines That Anchor Every Analysis

At‑Risk Capital and the No‑Redemption Principle

EB‑5 capital must be exposed to the ups and downs of the enterprise. The investor cannot be given a right (express or implied) to get their money back on preset terms, nor a guaranteed benefit that substitutes for repayment. When condo marketing suggests that an investor’s EB‑5 funds will predictably finance their own unit or be credited against the purchase price, the investment starts to resemble a loan with a built‑in take‑out. That is where compliant structure ends and prohibited redemption begins.

Borrowed Funds and Collateral

Investors may use borrowed funds, but the investor must be personally liable and the collateral cannot transform the equity into a de facto secured return. If the loan is offered by the developer or an affiliate and is implicitly expected to be repaid from EB‑5 proceeds, the risk escalates. Even without an explicit pledge of the EB‑5 interest, repeated references to repayment “when your EB‑5 capital returns” can undermine the at‑risk posture.

Integrity, Promoters, and Disclosures

RIA introduced promoter registration (Form I‑956K), routine audits, and an integrity fund. In practice, that may mean anyone who markets the investment, not merely the condos, should be registered, and compensation must be disclosed consistently across filings and investor communications. When glossy sales material promises perks that never appear in the filing set, the integrity problem is not cosmetic; it is structural.

Securities Law Overlays

EB‑5 interests are securities, offered to investors via private placement offerings. If someone solicits investors and is compensated on success—directly or indirectly—they are drifting into broker‑dealer territory. Calling it a “marketing bonus” or routing payment through a condo commission does not change the analysis. Regulators look to what is done and how it is paid for, not the job title on a business card.

What We See in Today’s Market

(Anonymized Case Studies)

Across marketing decks, real estate videos, and offering brochures, the same structural themes recur, often dressed in different branding but built on the same foundation. To illustrate, I’ve distilled these recurring designs into anonymized examples, Projects A through E, drawn from publicly available materials.

Project A: Buyers‑Only Participation

How it is marketed. The EB‑5 raise is said to be available only to purchasers of units in the same development. The message is subtle: “Our EB‑5 allocations are reserved for buyers.” Nothing overtly promises a financial credit, but eligibility is tied to being a purchaser.

Why this invites scrutiny. Conditioning access to a security on a separate consumer purchase is not automatically unlawful, but it concentrates conflicts. Any special consideration, such as extended closing windows, accelerated occupancy, or preferential pricing, which are offered because the person invests in the EB‑5 security starts to look like value guaranteed by virtue of investing. That is precisely the kind of linkage the no‑redemption rule aims to deter.

What a cleaner variant looks like. If a project insists on this framing, the condo and the EB‑5 investment must be demonstrably independent transactions. The EB‑5 documents should disclaim any condo‑related benefits, and the condo documents should make no reference to the EB‑5 investment. Promoter registrations and compensation disclosures must align across both tracks.

Project B: “Roll Your EB‑5 Into the Condo Later”

How it is marketed. The investor is told they can close on a unit now, or enroll in a leaseback or set‑off arrangement so that, after a period, the EB‑5 capital (or a similar amount) effectively funds their personal closing.

Why this is problematic. When the investment predictably ends up paying for the investor’s own property, it functions as a take‑out. Even if the paperwork avoids the word “credit,” the design treats the equity as a prearranged source of repayment or purchase funding. That is the essence of an impermissible redemption.

A practical example. Imagine an investor contributing to the EB‑5 partnership while entering a three‑year leaseback with a promise that cumulative lease payments and a prearranged set‑off will cover their down payment on closing. Even if the numbers are presented as independent, the commercial reality is a structured exchange of investment for personal benefit. USCIS evaluates substance over form.

Project C: Extended Closings for EB‑5 Buyers

How it is marketed. Sales teams quietly offer longer‑than‑market closing timelines to EB‑5 participants, which are sometimes coupled with occupancy or income arrangements, on the theory that immigration processing needs time.

Why this is risky. An extended closing is not illegal in isolation, but when the extension is consideration for investing, it becomes a benefit tied to the security. That can be read as assured value: the buyer enjoys time, occupancy, or income advantages that other purchasers do not receive, solely because they invested. If those concessions are not captured in the offering materials, there is also a disclosure problem under RIA.

What to verify. Look for side letters, marketing emails, or foreign‑language brochures that describe special EB‑5 timelines. If those promises exist outside the four corners of the offering documents, expect friction later, either at adjudication or during an integrity review.

Project D: Affiliate or Developer Loans to Investors

How it is marketed. The developer or an affiliate touts a personal loan to help investors meet the EB‑5 minimum, alongside informal assurances that repayment can occur when EB‑5 capital is returned.

Where the line is. Borrowed funds remain permissible if the investor is personally liable and any collateral is ordinary (for example, unrelated real estate) and does not touch the EB‑5 interest. Problems arise when the collateral is the EB‑5 partnership interest or when communications repeatedly imply that the expected source of repayment is the EB‑5 return itself. That expectation, even if not a hard covenant, erodes the at‑risk character of the equity.

A safer configuration. If loans are available, keep the lender independent, document personal liability, and remove any pledge of EB‑5 interests or proceeds. Marketing must not suggest that the EB‑5 investment is a built‑in savings plan for repaying the loan.

Project E: Early Escrow Release, Low Coupon, High Fees

How it is marketed. Materials describe TEA‑level minimums, an administration fee, release of funds upon filing rather than approval, and nominal interest to the investor over several years.

When this becomes a problem. None of these terms is inherently non‑compliant. But when paired with buyer‑only eligibility, extended closings, or condo‑linked perks, the overall profile shifts: the project obtains early access to capital while the investor receives benefits tied to a consumer purchase that are not available to others. That combination increases adjudication risk and can trigger integrity concerns if disclosures are inconsistent.

Deep Dive: A Real Estate Agent’s “Two Options at Closing” Pitch

I want to unpack a specific sales script we encountered on a real estate agent’s page. The text presents two paths offered to “EB‑5 investors at the time of closing.” Option One says the investor can close on the condo separately and move in immediately. Option Two offers a three‑year delayed closing on a leaseback where the developer rents out the apartment, splits the rental income with the investor, and, after three years, the investor closes using their “investment funds.” The realtor’s page then lists unit prices and invites readers to contact the office for a full “EB‑5 presentation.”

Option One: “Close on the Condo Separately and Move In Now”

On its surface, closing on the condo as a standard purchaser while also investing in the project’s EB‑5 raise can be structured compliantly, but only if the two transactions are genuinely independent. Independence means no cross‑references, no side letters, and no financial or timing advantages on the condo that exist because of the EB‑5 investment. The danger here is not in the act of buying a unit; it is in the framing: the real estate agent’s script offers these choices to EB‑5 investors at closing, implying that the very status of being an EB‑5 participant unlocks options unavailable to ordinary buyers. That implication, without more, is an inducement signal. If the project offers identical condo terms to all buyers, the marketing should say so explicitly. If it does not, the independence of the transactions is already compromised.

A second concern is documentary silence. If sales staff are empowered to discuss “options for EB‑5 investors,” the same concepts should appear accurately and consistently in the project’s offering documents and filings. When the conversation lives only in marketing, and not in the record submitted to USCIS, the integrity problem may eclipse the immigration issue.

Option Two: “Delay Closing Three Years, Leaseback, Then Close Using Investment Funds”

This second path is where the structural problems concentrate. A delayed closing tied to EB‑5 status is itself a form of consideration, particularly when offered as a package with leaseback income sharing. In plain terms, the investor receives economic value (e.g., time, occupancy alternatives, and income flow) because they are an EB‑5 participant. If the same package is not available to non‑EB‑5 buyers on equal terms, the consideration is investment‑linked.

The larger issue is the promised endpoint: after three years, the investor may “close with the use of their investment funds.” If those words refer to EB‑5 capital (or the anticipated return of that capital), the arrangement starts to look like a prearranged take‑out. EB‑5 equity is meant to be at risk in the enterprise, not earmarked to pay for the investor’s personal condo. Even if the paperwork avoids a literal credit from the NCE to the closing table, a structured set‑off that predicts the investor will draw on the EB‑5 investment to fund their purchase mirrors a redemption in substance. Pair that with a leaseback that funnels interim income to the investor before they even take title, and the inducement picture sharpens.

Timing compounds the problem. Post‑RIA guidance continues to require that the EB‑5 investment be sustained at risk for a defined period associated with conditional residence. A three‑year delayed closing that depends on tapping the EB‑5 investment or its proceeds risks colliding with that sustainment horizon. Designing the condo plan around the expected return of EB‑5 capital is precisely what the no‑redemption framework tries to prevent.

Pricing Details and the “Contact Us for an EB‑5 Presentation” Cue

The page moves seamlessly from the two options into specific price points and a call to contact the office for an EB‑5 presentation. That transition matters. When a real estate agent invites prospective buyers to a presentation about the investment, the agent is no longer confined to property brokerage. They are promoting a security. If compensation is success‑based directly or indirectly via enhanced condo commissions when a buyer also invests, then the activity drifts toward unregistered broker‑dealer conduct. Separately, post‑RIA promoter registration expects anyone who markets the investment to be registered and disclosed; a realtor’s EB‑5 roadshow cannot be an off‑book activity.

Risks and Likely Consequences of the “Two Options at Closing” Structure

Why this structure is risky

The leaseback-and-delay pathway is framed as consumer flexibility, yet in practice it aligns the EB‑5 investment with a personal closing timetable. When a sales script proposes that, after three years, a buyer may “close with the use of their investment funds,” the commercial expectation becomes clear: the investment is anticipated to serve as a prearranged source for the buyer’s own purchase. Even without a literal credit in the offering documents, adjudicators and auditors look to substance. A planned set‑off of the investment against the condo closing resembles a take‑out/redemption, which is incompatible with the at‑risk requirement.

There is also the issue of investment‑linked consideration. Extended closings, income‑sharing leasebacks, or inventory preferences offered to “EB‑5 investors” provide assured economic value that exists because the person invests. Unless those same terms are broadly and identically available to non‑EB‑5 buyers, as well as documented solely in the condo papers, USCIS can view them as inducements that cushion risk, undermining the very uncertainty EB‑5 equity must bear.

Finally, the sustainment period presents friction. Post‑RIA, capital must remain at risk through the required window associated with conditional residence. A three‑year marketing arc culminating in “use your investment funds” suggests the enterprise is oriented toward personal liquidity on a calendar that may not track the immigration timeline. Even if papered to avoid a technical breach, the messaging can invite deeper inquiry and credibility issues.

What may happen to EB‑5 investors

At the I‑526E stage, investors may receive RFEs or NOIDs probing whether the package constitutes consideration or a de facto redemption. If the marketing promises do not match the filed offering set, integrity‑based questions follow. Later, at I‑829, if cash flows or closing mechanics reflect the marketed plan, particularly if EB‑5 capital or its return is used to fund the condo closing, USCIS may find that the investment was not sustained at risk, even if job creation occurred. Attempts to retrofit language after filings risk material‑change complications, while any sanctions action against the regional center or issuer can leave compliant investors facing delays and uncertainty not of their making.

What may happen to real estate agents

Real estate agents who host “EB‑5 presentations,” discuss terms or returns, and guide prospects into subscriptions are no longer just selling property; they are promoting a security. If their compensation is success‑based, whether paid as a separate referral fee or embedded in an enhanced condo commission contingent on the investment, they face broker‑dealer exposure under securities law. In parallel, post‑RIA, anyone who promotes a regional center investment generally must file Form I‑956K before doing so and ensure that compensation is disclosed in the petition record. Failure on either front can trigger investor RFEs and platform‑level integrity scrutiny.

What may happen to developers and issuers

Developers who tolerate EB‑5‑only inducements in sales channels or rely on unregistered distribution risk USCIS integrity actions (audits, site visits, sanctions) and securities vulnerabilities (rescission risk, challenges to private‑offering exemptions). Even if the economics of the project are sound, adjudication timelines can lengthen, capital can be delayed in escrow or clawed back, and reputational costs can spill into lender and presale relationships.

The short version

The second option concentrates nearly every major EB‑5 tripwire: redemption, consideration, sustainment timing, and promoter/securities compliance, all into one package. The first option is viable only if the condo purchase and EB‑5 investment are genuinely independent in documents, economics, and sales practice. Without those safeguards, both immigration and securities risks migrate from theoretical to likely.

“Consideration” Offered to EB‑5 Investors: Why It Matters

The simplest way to understand consideration is to ask: Would this person receive this perk if they did not invest in the EB‑5 security? If the answer is no, the perk is likely tied to the investment. Common examples include special pricing or credits, rent guarantees, long closings, or occupancy rights offered only to EB‑5 participants. Each of these conveys value that is independent of investment performance. Over time, a pattern of such value can look like a substitute for the very risk the statute requires. When inducements are delivered via off‑book emails, foreign‑language videos, or sales‑center scripts, the disclosure problem compounds the at‑risk problem.

Real Estate Agents and the EB‑5 Investment Pitch

When Property Sales Morph into Securities Solicitation

Real estate professionals and realtors understandably lead with property features, but the line is crossed when the conversation shifts to investing in the EB‑5 security: the entity, the term, the return, the job creation model, and petition outcomes. If that solicitation is tied to success‑based compensation, even indirectly via enhanced condo commissions or referral bonuses, the activity starts to look like unregistered brokerage.

The Commission Problem by Another Name

Some teams try to cordon off securities compensation by embedding it in the real estate commission. If the extra payment is available only when the buyer also subscribes to the EB‑5 security, the law will likely treat it as what it is: transaction‑based pay for placing a security. The label is less important than the economic reality.

Promoter Registration in Practice

Post‑RIA, anyone promoting a regional center investment should be registered and disclosed. That includes influencers and agents creating videos that promise “green card + condo in one package.” If a real estate agent truly confines themselves to property brokerage, they should hand off the investment conversation to the issuer’s registered distribution partners and avoid success‑based compensation tied to the security. If they do promote the investment, they should register and ensure that compensation is disclosed consistently in the record.

What Changed Since 2018, and Why It Hasn’t Solved Everything

RIA gave USCIS new tools: audits, site visits, an integrity fund, and a promoter‑registration regime. The USCIS Policy Manual has since clarified sustainment for post‑RIA investors and reiterated at‑risk principles. Meanwhile, reserved visa categories have increased demand for certain project types, including some condo‑heavy developments. The enforcement toolkit is stronger, but it is not omnipresent; marketing that occurs off‑platform or overseas may never appear in the project record unless someone makes sure it does. That gap explains why some designs continue to circulate despite the formal rules.

Conclusion

The promise of “condo + green card” remains powerful, but the very features that make it compelling to a buyer often make it non‑compliant as an investment. RIA has sharpened the tools regulators can use, yet the burden still falls on practitioners and investors to separate marketing gloss from structural reality. If the value offered to an EB‑5 participant would vanish the moment they decline to invest, it is probably consideration—and it is probably a problem. The solution is not to abandon real estate projects, but to build them with the discipline EB‑5 deserves: true at‑risk equity, honest disclosures, and a strict firewall between consumer perks and investment terms.