Congress Reauthorizes EB-5 Program in Omnibus Spending Bill

After a year’s lapse, Congress reauthorized the EB-5 visa program as part of the new omnibus spending bill that came out of the House, as the Wall Street Journal originally reported.

The overall bill was the first major spending legislation during President Joe Biden’s administration. Congress had been working with continuing spending resolutions that keep the government from shutting down but don’t set out a year’s budget or update figures.

The EB-5 program allows foreign nationals who invest minimum amounts to obtain permanent residence visas—a.k.a., green cards—for themselves, spouses, and unmarried children under 21. 

The program had expired in 2019 after a 30-year run—it was a part of the Immigration Act of 1990—because a renewal lacked sufficient support and to bring it back required new legislation. Senators Chuck Grassley and Patrick Leahy had proposed a new version back then that favored rural over urban developments, a move the CRE industry didn’t like. Another reason for changes was concern about fraud under the program.

Minimum investment levels have changed. Pre-2019, they were $500,000 in a high-unemployment targeted employment area or rural area (TEA) or $1 million otherwise. The levels were supposed to increase in 2019: $900,000 in a TEA or $1.8 million in a non-TEA location but didn’t because the program was not renewed. 

In the new legislation, the numbers are again different. For non-TEA locations, the minimum is $1,050,000. For TEA investments, the minimum is now $800,000. Amounts will adjust starting in 2027 and then every five years for accumulated inflation.

The significant reduction in the difference between investment levels might raise the question of whether the gap is high enough by itself to attract money toward TEAs. But in the newer version, there are set-asides in the 10,000 EB-5 visas that will be available every year, as the National Law Review noted. 

A total of 30% of the visas are reserved for TEA investment: 20% for rural areas (both Grassley and Leahy represent states with significant rural portions) and 10% for high-unemployment areas. Another 2% is allotted for infrastructure project investments.

Any unused visas in a given year carry over to the same category in the following year. Any remaining unused visas from that year go into the general pool two years after.

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