Money and structure

Buy back option

Also called Buy-back option, Option exercisable by the new commercial enterprise.

A buy back option is a right to repurchase an EB-5 investor's interest that only the new commercial enterprise may exercise, and 8 U.S.C. 1153(b)(5)(D)(ii)(IV) makes it the one repurchase arrangement the statute leaves inside the definition of capital, provided it also results in the investor withdrawing the petition unless the sustainment period and the other requirements have been met.

What it decides

8 U.S.C. 1153(b)(5)(D)(ii)(III)(dd) strikes out of capital anything invested under an agreement giving the investor a contractual right to repayment, naming a mandatory redemption and a put or sell-back option held by the investor, and it does so even where the right is contingent on the enterprise having sufficient cash flow. Subclause (IV) is the only way back in, and its two conditions are joined by and: the option must be exercisable solely at the discretion of the new commercial enterprise, and it must result in the investor withdrawing the petition unless the sustainment period and other requirements are met. For petitions filed before 15 March 2022 USCIS reached the same place through the regulation, and that guidance still shows what breaks the structure: an option nominally held by the enterprise is impermissible where ancillary provisions oblige the enterprise to exercise it, or to liquidate assets and refund a set amount if it does not. The discretion has to be real and it has to belong to the enterprise.

Governed by 8 U.S.C. 1153(b)(5)(D)(ii)(III)(dd) and 8 U.S.C. 1153(b)(5)(D)(ii)(IV), read on uscode.house.gov and confirmed word for word against the govinfo prints of the 2023 and 2024 Code; USCIS Policy Manual Volume 6, Part G, Chapter 2, Section A, headings Redemption Language for Petitions Filed Before March 15, 2022 and Redemption Language for Petitions Filed on or after March 15, 2022 (6 USCIS-PM G.2(A)), page's most recent listed update 26 February 2025. The ancillary provisions point is USCIS guidance written for pre 15 March 2022 petitions, not statutory text, and is described here as guidance rather than as law.

Related terms

Redemption and buy-back optionA redemption or put right is a contract term letting the investor demand that the new commercial enterprise repay or repurchase the investment, and by statute it takes the money out of the definition of capital. A buy back option is the mirror image, exercisable by the enterprise rather than the investor, and it is the one such term the statute allows.
Capital at riskThe rule that the investor's required capital must be genuinely exposed to loss, with a real chance of gain, and not shielded by a guaranteed return or by any contractual right to repayment.
Guaranteed returnA promise that the investor will earn a set return, or will get the principal back, which the EB-5 statute strikes out of the capital that counts, to the extent of the amount guaranteed.
Sustainment periodThe period an EB-5 investor's capital must stay invested. For a petition filed on or after 15 March 2022 it is two years, and USCIS counts it from the date the capital was contributed to the new commercial enterprise and placed at risk, not from admission as a conditional resident. For a petition filed before that date it is instead the two years of conditional permanent residence.
InvestInvest, in EB-5, means to contribute capital to the new commercial enterprise, and 8 CFR 204.6(e) provides that a contribution made in exchange for a note, bond, convertible debt, obligation or any other debt arrangement between the investor and that enterprise is not a contribution of capital, so the money must buy an ownership interest rather than a claim to be repaid.

Checked against primary sources on 10 August 2026. Back to the glossary