EB-5 Investors Now Enjoy Greater Chances Of Immigration And Financial Success Under The New EB-5 Reform And Integrity Act Of 2022 – Work Visas

Immigrant investors pursue the EB-5 visa program to obtain
permanent residency status in the United States. Like many
immigrants before them, they look forward to the day they gain the
right to live and work anywhere in the United States. Applying for
the EB-5 visa, however, entails some risk. Investors are not
guaranteed that their EB-5 visa petitions will be approved or that
their funds will be returned. These outcomes depend on the success
of each EB-5 commercial enterprise in promoting economic
development and employment creation. EB-5 projects must also remain
compliant with EB-5 Immigrant Investor Program and United States
Citizenship and Immigration Services (“USCIS”)
regulations.

Potential EB-5 visa applicants should plan carefully before
making a capital investment. Over the years, foreign investors have
faced isolated instances of fraud and misappropriation of EB 5
investment funds. And to raise the stakes further for investors,
geopolitical uncertainty in 2022 has put a strain on the global economy.
Commodities prices have surged in many countries. In light of the
financial and immigration risks involved, potential EB-5 investors
may understandably be hesitant to commit their hard-earned money
toward obtaining U.S. permanent residency visas, also known as Green Cards.

Despite these challenges, EB-5 investors can significantly
increase their chances of immigration and financial success: they
should carefully evaluate potential EB 5 investments and work with
experienced industry professionals.

To reduce the risk of fraud and protect foreign investors,
Congress enacted the EB-5 Reform and Integrity Act of 2022 (the
“Act”). Signed into law on March 15, 2022, the Act
introduced measures to make regional centers and EB-5 participants
more accountable to USCIS. The Act requires a
higher level of transparency within the EB-5 industry, affecting
everyone from fund managers to overseas migration agents. Due to
these reforms, EB-5 investment Green Card applicants can invest
with a greater sense of security now than at any other time during
the 32-year history of the EB-5 Immigrant Investor Program.

Increased Accountability for Regional Centers and Migration
Agents

EB-5 regional centers are granted authority by
USCIS to manage funds from multiple investors across various EB 5
investment projects. Under the Act, USCIS will now oversee regional
centers’ activities more carefully. Greater oversight will make
fraud, fund mismanagement, and non-compliance even more
unlikely.

These reforms will discourage each EB 5 regional center from
taking liberties with its affiliation and loan agreements. The Act
will also keep EB-5 industry participants accountable by placing
substantial penalties on non-compliance, such as providing
inaccurate information. These measures will help protect all
regional center investors from losing their investment funds or
becoming disqualified for investment Green Cards.

NEW REPORTING REQUIREMENTS

The management of each regional center must notify USCIS before
making changes to its business structure or management team.
Regional centers are also required to submit annual financial
reports to USCIS and to their investors. These reports must show
that the regional center is compliant with the U.S. securities regulations that govern EB-5 investments. For
investors, the new reporting requirement grants them access to
detailed records of how their money is used each year.

These annual financial reports must also be verified, as EB-5
commercial enterprises are now required to retain third-party fund
administrators or obtain audited financial statements. This extra
step helps ensure that the EB5 investment capital is used by the
commercial enterprise to create jobs. And since EB-5 fund
administrators are often highly selective when choosing clients,
reputable fund administrators are unlikely to accept a suspicious,
high-risk, or non-compliant EB5 project. Such a project may also
find it difficult to obtain audited financial statements. As a
result, EB-5 investors can be even more confident that their capital will be handled responsibly and with
increased transparency by the project in which they
invested.

For an EB-5 investor,
the possibility of material changes to their EB-5 project
represents a major immigration risk. Material changes are
significant deviations from an EB 5 investment project’s
business plan that would prevent its investors from obtaining their
Green Cards. Since USCIS has not released a concrete definition of
what might be considered a material change, EB 5 investment
projects should avoid all unnecessary changes to their business
plans.

Historically, however, EB 5 investment projects have had little
incentive to avoid such changes. Under the Act, regional centers
are now required to notify USCIS of any significant project changes
and whether they communicated these changes to their investors.
This added layer of oversight encourages the management of regional
centers and EB-5 projects to follow through on their business
plans.

Under the Act, all promoters marketing an EB-5 project must now
register with USCIS. Even overseas migration agents will be required to provide a
record of all fees paid by investors. Previously, foreign migration
agents working outside the United States were not accountable to
USCIS. This lack of oversight made it easier for EB-5 investment
promoters to be less transparent with investors.

Additionally, every EB 5 investment project sponsored by a
regional center must now submit a Form I-956F “project request” to
USCIS before investors can file Form I-526E, the first petition in the EB-5
investment Green Card process. These project requests not only
include investment documents associated with the EB-5 project, such
as the confidential private placement memorandum, but also detail
the project’s marketing fees and operating plan to demonstrate
compliance with U.S. securities regulations. Through project
requests, USCIS will be able to monitor regional center activities
more closely. The goal is to detect any irregularities or
non-compliance early on.

NEW ACTIVE OVERSIGHT ACTIVITIES

To guard against fraud and fund misappropriation, USCIS will
additionally carry out in-person site visits to regional center
projects. These visits will help ensure that the reported business
activities are actually taking place. USCIS will also audit each
EB-5 regional center at least once every five years.

USCIS will also perform more thorough background checks on
individuals involved in the EB-5 industry. People with criminal
convictions in the past 10 years cannot be affiliated with a regional center. Also,
anyone who has been involved in a case of fraud with a liability of
more than $1 million is banned from participating in the regional
center component of the EB-5 program.

SEVERE CONSEQUENCES FOR NON-COMPLIANCE

Failure on the part of regional centers to comply with the new
requirements of the Act, or to provide truthful reports, will
result in severe consequences. USCIS may fine a non-compliant
regional center by up to 10% of its raised capital. USCIS may also
suspend or terminate regional center licenses and debar (that is,
exclude from the EB-5 program) any individuals involved in
non-compliance.

Moreover, each regional center will be required to contribute
$10,000–$20,000 yearly to support a new integrity fund. This
fund will provide USCIS with added resources to supervise the EB-5
investment industry.

Further Provisions to Protect Investors

PROTECTIONS AGAINST TERMINATED OR DEBARRED EB-5 PROJECTS
AND REGIONAL CENTERS

Even if a foreign national carefully evaluates an EB-5 project
before investing, there is still no guarantee of future success.
Fraud, mismanagement, or non-compliance on the part of an EB-5
project or regional center may result in the termination or
debarment of the project or regional center. Prior to the Act,
USCIS was almost certain to deny the EB-5 visa petitions of
investors whose regional centers or EB-5 projects were terminated
or debarred. To address this risk, the Act includes provisions to
protect innocent investors against events that are outside of their
control. Investors whose regional centers or EB-5 projects are
terminated or debarred are now given 180 days to invest in other
EB-5 projects or to have their project affiliate with a different
regional center. Innocent investors who take advantage of this
provision will not lose their USCIS processing priority dates or
the child status of dependent family members.

AN EXTENDED WINDOW FOR JOB CREATION

EB-5 investors who file Form I-829, the final application used to
obtain an EB-5 investment Green Card, are no longer required to
have created
all 10 required jobs at the time of filing. Instead, they can
be “actively in the process of creating” the jobs. In
such cases, foreign investors are allowed one additional year to
show that the jobs were created. Before the end of the additional
year, these investors must submit another petition showing that the
jobs were created and that the project resulted in economic
development. This increased flexibility strengthens EB-5
investors’ chances of obtaining permanent residency even if job
creation is delayed.

GUARANTEED PROCESSING IF THE REGIONAL CENTER PROGRAM
LAPSES

When the regional center component of the EB-5 program lapsed on
June 30, 2021, USCIS stopped processing regional center
applications. The only hope for EB-5 investors in regional center
projects was that Congress would reauthorize the regional center
program. The Act both reauthorized the regional center component of
the EB-5 program and provided protections to investors in case of a
future lapse: under the Act, all regional center investors who file
I-526 petitions on or before September 30, 2026, are guaranteed to have their applications
processed even if the EB-5 Regional Center Program lapses once
more.

Increased Safety Implies More Expenses for Investors

Under the Act, the minimum investment cost of pursuing an EB-5
investment Green Card has increased. The Act raised the capital
investment threshold for projects in a targeted employment area
from $500,000 to $800,000. A targeted employment area is a rural or
high unemployment location in need of economic development. Of the
two classifications, high unemployment targeted employment areas
have historically been more popular in the EB-5 program.

These minimum investment amounts apply to all visa applicants in
the EB-5 Immigrant Investor Program, regardless of whether they
make a direct investment in a commercial enterprise or invest
through a regional center.

Additionally, since the new regional center program compliance
requirements stemming from the Act will cause a significant
increase in the cost to operate a regional center and correctly
administer an EB-5 project, it is expected that EB-5 regional
centers will raise their administration fees. EB 5 immigrant
investor returns are expected to decrease correspondingly.

Concluding Thoughts

Because of the EB-5 Reform and Integrity Act of 2022, foreign
nationals can make EB-5 investments with far greater confidence.
Under the Act, the EB-5 industry will become more transparent and
accountable. These reforms help protect investors against many of
the most serious risks associated with EB-5 foreign
investments.

As in all investments, however, the EB-5 investment process
still entails some risk. Investors must carefully weigh the risks
of each prospective EB-5 project, and the immigration services of
experienced EB-5 attorneys can be very helpful to EB-5 visa
applicants. But now, more than ever, EB-5 investments provide
foreign nationals with a safer and more effective way to immigrate
to the United States. The Act represents significant progress in
supporting investors’ goals of getting U.S. Green Cards and
safeguarding their funds. At the same time, EB-5 funds continue to
promote economic growth in high unemployment and rural areas.

Co-Authored by Samuel B. Silverman, founder and managing
partner of EB5 Affiliate Network (EB5AN).

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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