EB5 Program Reauthorized But with Notable Changes

On March 15, 2022 President Biden signed into law the spending bill which included a provision to reauthorize the employment-based fifth preference immigrant investor program, with notable changes including increasing the minimum investment requirement and other protocols to increase transparency.

The EB5 program was created by Congress through the Immigration Act of 1990 as a way to vitalize the U.S. economy and give foreign entrepreneurs a path to invest in American enterprises and permanently live/work in the U.S. With the program, investors become eligible to apply for permanent residency if they invest a minimum of $1,050,000 in a commercial enterprise that creates at least ten full-time jobs for domestic workers. The alternative is that at least ten indirect jobs are created to meet this requirement if the investment is made in a regional center.

EB5 Regional Center Investor Protections

In the summer of last year, the regional center clause of the program expired so with the new provision of the bill, the regional center clause was reauthorized and will be in effect beginning May 15, 2022 and go through September 30, 2027 or later. As an added facet, Congress created a protection for future regional center investors (in the event that the program is not reauthorized) so that if a foreign entrepreneur files an I-526 by September 2026 (for investment based on regional center) and if at that point the regional center program is no longer in effect, their case will have to be adjudicated by USCIS based on the law when their I-526 was filed. Moreover, the law prevents foreign nationals from pooling EB5 investments into a single commercial enterprise, other than investments made in regional centers.

Minimum Investment Requirement Increased

As previously mentioned, the minimum investment requirement has been increased to $1,050,000 up from $500,000 years prior. The investment requirement goes down to $800,000 if it is in an infrastructure project or targeted employment area (TEA). To be considered an infrastructure project, it must be administered by a federal, state, or local agency as well as other requirements. The U.S. Department of Homeland Security (DHS) must be the one to determine if an area meets the qualifications to be an area of high unemployment in order to qualify as a targeted employment area.

Starting January 1, 2027, and in five-year increments thereafter, the minimum investment amount for EB5 projects is subject to increase based on the Consumer Price Index. In regards to TEAs and infrastructure projects, the minimum investment amount will be increased to 60% of the standard investment minimum.

Recent changes, including the required investment amount and TEA designations, do not apply to investors who filed their I-526 before March 15, 2022.

Filing Adjustments of Status

Based on the law changes, EB5 investors who are in valid status can file adjustments of status while their I-526 is pending if the priority date is current. Moreover, EB5 investors are eligible for forgiveness of up to 180 days of status violations when filing their I-485 based on INA section 245(k).

Allocation of Visa Types

Changes to the law allotted 32% of the annual EB5 visa quotes to specific types of projects:

• 20% of visas for are for investors who invest in a rural area of the U.S.
• 10% for those investing in a high unemployment area determined by USCIS
• 2% for those investing in a new category for qualifying infrastructure projects administered by a federal, state or local government entity

Addressing Long Wait Times

A final initiative Congress plans to address is the long processing times of the petitions by requiring USCIS to thoroughly vet the issues and set filing fees for EB5 petitions so that USCIS can hire additional staff to process them in a reasonable time frame.