Repayment priority is commercially important, and the actual terms also need review against the immigration requirement that capital be at risk. The investor must establish the applicable capital amount, lawful source and path, a qualifying enterprise and attributable qualifying jobs. Seniority in a capital stack neither establishes those requirements nor guarantees recovery of the investment.
Judge risk and eligibility separately
Being repaid last increases the chance of loss, which is a reason to negotiate or decline, not a reason the petition fails. Conversely, a guaranteed return would create an immigration problem, since capital must remain at risk. Ask the sponsor to explain in writing how the job-creation methodology works for this structure, then have counsel confirm whether the claimed direct or indirect jobs are permitted by the arrangement being offered.
Add one further consequence of that separation between risk and eligibility. Because the capital must remain at risk, any feature designed to protect the investor commercially deserves reading twice: a repurchase right exercisable at the investor's option, a guaranteed minimum, or an arrangement under which the sponsor undertakes to return the money on a fixed date can each create an immigration problem while looking like prudence. Ask counsel to review the protective terms specifically, not only the job-creation methodology, and to say plainly which of them are compatible with the requirement.
Hypothetical example: an investor negotiating a subordinated position asks for a redemption right as compensation for the risk, and the review establishes that the term intended to make the deal tolerable is the one most likely to cause difficulty, which is a conversation for the drafting stage rather than afterwards.