What Immigrant Investors Need to Know About the EB-5 Reform and Integrity Act | Jackson Walker

Substantial changes are forthcoming for the EB-5 Immigrant Investor Program as the omnibus spending bill awaits President Biden’s signature. Aside from proposing $1.5 trillion for annual expenses and aid, the omnibus bill includes new EB-5 legislation, entitled the “EB-5 Reform and Integrity Act of 2022,” that immediately increases the standard EB-5 minimum investment amount to $1,050,000, or $800,000 if in a targeted employment area (TEA), and reauthorizes the EB-5 Regional Center program through September 30, 2027.

EB-5 Visa Reforms

Several updates are planned for 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)). Under the new legislation, EB-5 visas shall continue to be made available to a qualified immigrant investor

  • who has invested, or is in the process of investing, capital in an amount not less than $1,050,000, or $800,000 for TEA and infrastructure projects; and
  • whose commercial enterprise must benefit the nation’s economy by creating full-time employment for at least 10 qualifying employees.

The legislation also stipulates that of the EB-5 visas made available each fiscal year, 20% is reserved for qualified immigrants who invest in a rural area, 10% is reserved for qualified immigrants who invest in a high unemployment area, and 2% is reserved for qualified immigrants who invest in infrastructure projects. Any unused visas reserved for any of those three investment areas can be carried over into the following fiscal year.

Additionally, the legislation charges the Secretary of Homeland Security, or a designee of the Secretary, with designating a high unemployment area for TEA purposes, which will remain in effect for a two-year period. The designation may be renewed for one or more additional two-year periods if the applicable area continues to meet the specified criteria. Should the designation expire, an immigrant investor is not required to increase the amount of investment if they already invested the required amount of capital in that area.

Regional Center Program Reauthorized

After lapsing nearly nine months ago, the EB-5 Regional Center Program is cleared for reauthorization—with some key items to note.

  • New I-526 petitioners anticipating to file in connection with the Regional Center Program must wait to file until 60 days after the enactment date.
  • EB-5 petitioners will be grandfathered and protected against a program lapse in the future. Already-filed I-526 petitions that are pending with USCIS will resume and do not need to wait the 60-day enactment period.
  • Eligibility for concurrent filing of Adjustment of Status for those EB-5 investors who are in legal status in the U.S. and are eligible for a visa number.
  • EB-5 investors seeking to pool his or her investment with one or more additional EB-5 investor shall file in accordance with the Regional Center Program.
  • A Regional Center is required to file for approval by way of I-924 exemplar application for each particular investment offering, but EB-5 investors are not required to wait for exemplar approval before filing an I-526 petition in connection with the project.
  • In processing petitions for classification of a Regional Center, the Secretary of Homeland Security must prioritize the processing and adjudication of petitions for rural areas.
  • Regional Centers are required to notify the Secretary of significant proposed changes to its organizational structure, ownership, or administration no later than 120 days before implementation. Under exigent circumstances, Regional Centers can provide notice not later than five business days after a change has been made.
  • Implementation of certain indirect job creation limits for Regional Center projects.
  • Each Regional Center must preserve any transactions, books, ledgers, records, and other documentation during the five-year period and make such records available to the Department of Homeland Security for audits.
  • The Secretary of Homeland Security is tasked with auditing each Regional Center at least once every five years. The Secretary may terminate the designation of a Regional Center that does not consent to an audit or deliberately attempts to impede an audit.
  • Each Regional Center must also submit an annual statement to Homeland Security. Failure to submit an annual statement will result in a sanction.

In addition, the legislation states that only a U.S. national or lawful permanent resident is allowed to be involved with a Regional Center.

Lastly, the legislation establishes the EB-5 Integrity Fund, a special fund that collects an annual fee every October 1 and a petition fee of $1,000 for classification of a Regional Center. The Secretary may increase the amounts to help fund program enforcement activities.

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