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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
- 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
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
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
- 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
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
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