Investing in the United States through the EB-5 Immigrant Investor Program has become an increasingly complex endeavor, especially with the recent enactment of the EB-5 Reform and Integrity Act of 2022 (RIA). To help shed light on the intricacies of this program and address the pressing questions of investors, we present this detailed Q&A guide. Covering critical aspects of investment timeframes, sustainment requirements, job creation, and more, this article aims to provide clarity and understanding for all stakeholders involved.
I. Investment Timeframe
- Legal Basis for 2-Year Investment Sustainment: Since March 15, 2022, investors filing Form I-526 or I-526E petitions are now required to maintain their investment for a minimum of two years. This change, brought about by the RIA, emphasizes the necessity of a sustained investment commitment for eligibility under INA 203(b)(5)(A)(i).
- Duration of Investment for Post-RIA Filings: Investors filing EB-5 immigrant visa petitions must invest the required capital in a new commercial enterprise in the United States and maintain this investment for at least two years. The start date of this period is interpreted as the date when the full qualifying investment is made and placed at risk under applicable regulations.
- Investment Timeframe for Form I-829 Approval: For investors filing Form I-829 petitions based on Form I-526 petitions filed before March 15, 2022, the sustainment requirement remains tied to an ‘at-risk’ 2-year conditional permanent resident period. Post-RIA investors, however, will be subject to new INA 203(b)(5) and 216A requirements. The investment should generally be maintained if it was made more than 2 years before filing Form I-526, ensuring eligibility evaluation.
- Retaining Investor’s Capital: The INA does not impose an upward limit on how long an investor’s capital may be retained. Regional centers and associated new commercial enterprises can negotiate longer investment periods directly with investors, independent of EB-5 eligibility requirements.
- Investment Return for Post-RIA Investors: Generally, post-RIA investors can retrieve their investment capital once the requisite investment amount has been placed at risk and job creation requirements have been met, without affecting the immigrant petition.
- Investment During Employment Creation Process: Investors actively engaged in creating necessary employment but haven’t achieved it by the time of filing for removal of conditions on their permanent resident status can receive a discretionary one-year extension. During this time, the investment capital must remain active, even if it extends beyond the initial two-year period.
- Sustainment for Pre-RIA Direct Investors: Pre-RIA direct investors must maintain their investment capital ‘at risk’throughout the two-year period of conditional permanent residency. Job creation requirements must be fulfilled within 2 years of conditional permanent residency and entry into the United States, with the creation of 10 full-time qualifying direct jobs.
Targeted Employment Areas (TEA) and Infrastructure Projects
- Adjudication Process for Designations: For regional center cases, designations of high unemployment areas and infrastructure projects will be made during the adjudication of Form I-956F, Application for Approval of an Investment in a Commercial Enterprise. For standalone cases, these designations will be made during the adjudication of Form I-526, Immigrant Petition by Standalone Investor.
Application to Register Permanent Residence or Adjust Status (Form I-485)
- Concurrent Filing of Forms: Concurrent filing of Form I-485 and Form I-526 or Form I-526E is permissible if approval of the petition would immediately provide a visa. Refer to INA section 245(n) for relevant requirements and consult an attorney before filing. In case of pending Form I-526, including those filed before March 15, 2022, filing Form I-485 is permissible if relevant requirements are met. Refer to the Form I-485 page for additional information on Form I-485 filing requirements or consult an attorney before filing.
II. General Interpretation
- Importance of Biometrics Appointments: Fulfilling biometrics appointments is crucial. Failure to appear might lead to the denial of the benefit request, unless valid reasons such as a change of address or rescheduling are provided.
- Communication Channels with DHS: Industry stakeholders and applicants can communicate with DHS about specific EB-5 cases via designated channels: via email at [email protected], the Contact Center, or the Office of Public Engagement.
III. Administrative Procedure Act (APA) Considerations with Interpretation
- Transparency in Interpretations: These interpretations align closely with the RIA and do not alter substantive regulations or create new legal obligations. Therefore, they are not subject to APA notice-and-comment procedures. The interpretations provide clarity without imposing new requirements on investors and stakeholders.
- USCIS Officer Discretion: While this guidance aids USCIS officers in their decisions, it does not remove their discretion. Officers must follow the guidance, although it does not create legally enforceable rights and benefits.
- Consideration of Investor Interests: USCIS will apply the RIA provisions to petitions filed after March 15, 2022, ensuring consistency with the plain language of the statute. Consideration of reliance interests and potential retroactive impacts led to interpretations that provide flexibility and minimize burdens on EB-5 entities and investors. These interpretations aim to strike a balance between regulatory requirements and the practicalities faced by stakeholders, ensuring the stability and integrity of the EB-5 program while accommodating the needs of investors and entities involved.
In conclusion, understanding the recent changes in the EB-5 Immigrant Investor Program is essential for investors and industry stakeholders. By staying informed and navigating the program’s intricacies effectively, investors can make informed decisions and contribute positively to the U.S. economy.