What Immigrant Investors Need To Know About The EB-5 Reform And Integrity Act – Work Visas


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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
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.

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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