An escrow label does not establish qualifying investment by itself. Counsel should examine whether the funds and release conditions satisfy the applicable rules for an investment or an investor actively in the process of investing. Identify what can trigger release or return, how the money reaches the enterprise, and how the full required capital and job evidence are supported.
Have the agreement reviewed before signing
Give immigration counsel the escrow agreement, subscription documents and offering memorandum together, because the release condition only makes sense alongside how the enterprise will use the money. Ask specifically whether any refund or redemption right in the documents conflicts with the at-risk requirement. If the answer is uncertain, that is a reason to seek amended terms rather than to wire and hope the point is never examined.
Give counsel the escrow agreement, the subscription documents, and the offering memorandum together, and ask for the answer in writing. Three points usually need addressing: whether any refund, redemption, or guaranteed-return term conflicts with the requirement that capital be at risk; how and when the money reaches the new commercial enterprise; and how the ten full-time positions for qualifying employees are expected to be evidenced. An escrow label describes custody, not compliance.
Where the answer is uncertain, that is a reason to seek amended terms before signing rather than to transfer and rely on the point never being examined. Ask also what happens to the investor's position if the sponsor changes the project after release.