EB5 Investors Magazine Volume 7, Issue 2 | Page 12

EB-5 Redeployment Transactions on the Defense: Lawsuits, Breach of Fiduciary Duty Claims and Consent Issues Steps new commercial enterprises can take to try to avoid potential litigation when redeployment is inevitable. By Ronald Fieldstone, Rohit Kapuria and Catherine DeBono Holmes R edeployment has become a major component of the EB-5 program given the significant retrogression that has occurred in China, as well as the more recent retrogression in India and Vietnam. Due to long time delays in the EB-5 visa process, it is now common that the proceeds of repayment of the original loan or equity capital invested in an EB-5 project are required to be maintained at-risk pursuant to the June 14, 2017 USCIS Policy Memorandum. 12 EB5 INVESTORS M AGAZINE There are many options for a new commercial enterprise (NCE) to navigate this critical area and select appropriate solutions to mitigate the risk of litigation or claims brought by unhappy EB-5 investors. Usually, the obligation to redeploy in a manner that will satisfy both the financial and immigration goals of the EB-5 investors rests with the general partner/manager of the NCE. In many cases, the general partner/manager of the NCE has conflicts of interest in making the redeployment investment selection, either because the general partner/