The EB-5 Regional Center Program (“Program”) was reactivated on March 15, 2022, when President Biden signed H.R. 2471, the “Consolidated Appropriations Act of 2022.” This legislation enables foreign entrepreneurs to once again invest in job-creating projects sponsored by U.S. federal government authorized Regional Centers.
Through this Program, qualified investors are eligible to apply for permanent residency in the United States. The passing of the EB-5 Reform and Integrity Act of 2022, which is part of H.R. 2471, marks the first time since 2015 that the Program has been authorized for longer than just the fiscal year’s appropriations process.
The EB-5 industry’s toughest year yet
I first joined the EB-5 industry in 2008 while living and working in mainland China. Since then, I have witnessed firsthand the many changes and obstacles our industry has experienced. This past year has been by far the most challenging and turbulent period since the Program’s inception. Receiving reauthorization of our Program for another five years through September 30, 2027, was a major win for stakeholders at a time when Program stability was needed the most.
The EB-5 Reform and Integrity Act allows new I-526 petitions (i.e. conditional green cards) to be filed 60 days after March 15, 2022, and that date is fast approaching on May 14, 2022. The previous pending I-526 petitions, which were held in abeyance by USCIS during the Program’s suspension in 2021, have resumed processing by the United States Citizenship and Immigration Services (USCIS). Several active Regional Centers have been preparing for this day since the Program’s suspension last June.
A positive change in the new legislation is that foreign investors, who have been residing in the U.S. on non-immigrant visas, can file I-485 adjustment of status petitions alongside their I-526 petitions. The I-485 enables EB-5 investors to remain in the U.S., obtain employment authorization, and permission to travel abroad while their I-526 petition is being processed with the USCIS. Previously, under the old EB-5 law, investors needed to wait for their I-526 petitions to be approved prior to adjusting their visa status. In recent weeks, we have received significant interest from new applicants who have been living in the U.S. on non-immigrant visas.
As new investors prepare to file their I-526 petitions in a few weeks, they should make sure the Regional Center representing their project has already filed an I-924 petition. I-924 petitions, also known as “exemplars,” were previously optional for Regional Centers, but are now a USCIS requirement. New I-526 petitions may be filed immediately after – but not before – the sponsoring Regional Center has filed the project exemplar. All investors should verify that their Regional Center of choice has filed its I-924 petition.
This spring is a pivotal period for EB-5. The language of the EB-5 Reform and Integrity Act is complex. It can be subject to multiple interpretations and, in some areas, will require additional guidance from USCIS. Investors would be best served to undertake careful due diligence and be represented by an experienced Regional Center and immigration attorney. Supported by a strong EB-5 team, new applications have a much higher chance of meeting the requirements of the new legislation and being processed successfully.