IN THIS GUIDE · Escrow release and subscription terms
Start with the EB-5 eligibility and application overview
Locate the binding payment terms
Ask for the subscription agreement, escrow agreement and any amendments, not only a brochure’s summary. Identify the account holder, release decision-maker and conditions that permit money to leave escrow. Compare those terms with the offering’s use-of-funds description. A statement that money is held in escrow does not explain when it can move or what protections remain afterward.
Distinguish conditional arrangements
EB-5 treatment of escrow and investment commitment depends on the applicable requirements and the actual terms. Counsel should assess whether the arrangement supports capital invested or actively being invested and when it becomes available for the enterprise. Avoid assuming that any refundable deposit qualifies, or that a label such as escrow resolves the at-risk analysis by itself.
Read denial and withdrawal clauses
Determine whether a refund provision concerns petition denial, voluntary withdrawal, project cancellation or another event. Review deadlines, deductions, available funding and conditions attached to the obligation. A contractual promise is not proof that money will be available when needed. Independent review should address enforceability and financial exposure as well as consistency with the immigration structure.
Keep transfer evidence through release
Preserve the initial wire, escrow acknowledgement, release notice and enterprise receipt. These records connect the investor’s source file to actual deployment. If instructions change, verify the change through a reliable established channel and keep the revised documents. Do not treat an emailed payment request as proof of the legal account or the investment terms it supposedly implements.
Work from the executed agreements, not the summary
What decides this are the subscription agreement, the escrow agreement and every amendment to either, and a project summary is not a substitute for any of them. Request the executed versions with signature pages, then read for four specific things and record where each appears. First, the event permitting release from escrow, and who certifies that it has occurred. Second, the account the funds move to on release and who controls it. Third, the circumstances producing a refund, distinguishing petition denial from voluntary withdrawal, project cancellation and failure of a condition. Fourth, any provision allowing the terms to be amended after subscription, and whose consent that requires. Extract those four into a single note with clause references and dates. EB-5 requires the capital to be at risk in a new commercial enterprise, and whether a particular escrow arrangement is consistent with that depends on the actual terms and the applicable requirements, which is an assessment for counsel on the documents rather than an inference drawn from the word escrow.
Hypothetical example: a refund clause answering a different question
Hypothetical example: an investor is told that funds are fully refundable until the petition is decided, and the subscription agreement, read carefully, provides a refund only where the offering is withdrawn by the issuer. The two statements are not the same, and the difference is the whole protection the investor believed they held. What settles it is the clause itself, quoted with its heading and its defined terms, since words such as denial, withdrawal and termination usually carry specific definitions elsewhere in the agreement. Trace each defined term to its definition before accepting what a clause appears to say. Ask who decides that a refund condition has been met, on what evidence, and within what period payment follows, because a right with no mechanism is difficult to exercise. Preserve the wire instruction, the escrow acknowledgement, the release notice and the enterprise receipt as a continuous chain, so the movement of the money can be shown independently of what any summary described.
Sources reviewed 2026-09-07. This guide covers a preparation focus; it is not an individual eligibility assessment.