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USA – EB-5: Where are we now?

(ARTICLE CURRENTLY UNDER REVIEW)


EB-5 Reform and Integrity Act of 2022

The U.S. Congressional authorization for the Regional Center EB5 program expired on June 30, 2021. However, on March 15, 2022, President Biden signed into law the EB-5 Reform and Integrity Act of 2022 (RIA 2022). This Act has brought about significant changes to the EB-5 program and extended the EB5 Regional Center program through 30th September 2027. The following are some of the key policy revisions:

  1. Concurrent filing: Applicants now have the option to submit Form I-485, Application to Register Permanent Residence or Adjust Status, concurrently with, or subsequent to, a Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor, provided a visa is immediately available. What benefit does this change bring to the applicant?
  2. The petition Form I-526 has been updated from its previous name (Immigrant Petition by Alien Entrepreneur) to the current name (Immigrant Petition by Standalone Investor), and added a reference to Form I-526E, Immigrant Petition by a Regional Center Investor.
  3. Investment amounts: The minimum investment amount has been increased from $500,000 to $800,000 for Targeted Employment Areas (TEAs) and from $1 million to $1.05 million for non-TEAs.
  4. Targeted Employment Area (TEA) designation process: The process for designating a TEA has been revised. Can this be summarized in 1 line? Is the process now more stringent or has it been relaxed?
  5. Reserved (or “set-aside”) visas: A portion of the EB-5 visa pool will be set aside for specific projects: 20% for projects in rural TEAs, 10% for urban areas with high unemployment, and 2% for infrastructure projects. What benefit does this change bring to the applicant? Talk about the reduction in wait times compared to before the reform.


The EB5 Reform and Integrity Act has significantly streamlined the adjudication process since its enactment in March 2022. In addition to simplifying the process, the Act has also enhanced security measures and improved the effectiveness of the program.


Simplified Adjudication Process

As per the most recent data provided by our U.S. legal counsel, the quickest processing time for Form I-526E can be approved in as fast as 4.5 months. However… estimated average time for the USCIS is projected to be 6 months. However, these processing times are subject to constant fluctuations, and applicants are advised to consult with our Mobility and Migration Team for the most up-to-date information.

Upon approval of I-526E, cases will be transferred to the Department of State’s National Visa Center (NVC) for pre-processing. Once the case has been established in the system and the application has been completed in the NVC system, applicants will be required to schedule an immigrant visa interview, likely in their home country. The transition from the NVC stage to the visa interview is estimated to take approximately 6 months.


As of November 2023, chart B of the Visa Bulletin reflects that visas for RIA EB5 category are current.

The RIA EB5 program provides a range of visa application options to cater to the diverse needs of various family logistics.
Option 1 – Post RIA Adjustment of Status within the U.S.: This option is suitable for applicants who already possess non-immigrant visas or temporary visas such as F1, E2, B1/B2, etc., and have entered the U.S. These individuals may file an Adjustment of Status (AOS) petition concurrently with their I-526E (RIA EB5 petition) within the U.S. Following this petition, the USCIS will issue an employment authorization and travel documentation in a relatively short timeframe after filing. Can we provide an approx. processing time? Within 4-5 months.
Option 2 – Post RIA Rural Consular Processing outside of U.S.: This option is designed for applicants who prefer to file their I-526E petition overseas and remain in their respective countries during the processing timeline.

Option 3 – xxxxx…. But this is not covered by the present article.


The RIA EB5 Visa offers serval advantages for investors to immigrate to the U.S.

  1. No requirement for education, language, or background.
  2. Acquire legal status, live and work anywhere in the U.S.: the investors, their spouse and dependent children under 21 years of age can live, work, and study anywhere in the U.S. by investing in a standalone or designated Regional Center project.
  3. Children’s Educational and Employment Opportunities: An investor’s children have access to top schools in the United School with an EB-5 Visa.
  4. Quick Process to acquire Permanent Residency (known as “green card” status) and ultimately Citizenship: The post-RIA 2022 Set-aside category under the Eb-5 program is now one of the fastest route to obtaining U.S. permanent resident status.
  5. U.S. green card holder can apply for citizenship after 5 years (of what?).
  6. Project management no need to be hands-on.
  7. Does Not Require a Sponsor: The EB-5 Visa USA does not require investors to have sponsors to apply.
  8. Job Creation: The new business entity must create at least 10 full-time positions for qualified employees in the United States.
  9. Economic Stimulation: The creation of the EB5 Visa was primarily intended to boost U.S. regional economic growth via direct foreign investment.
  10. Obtain a Financial Return on Your Investment: The investment must be “at risk” but can be guaranteed by assets of the project to minimize potential losses.


Given the multitude of EB-5 projects available, how does one discern a program with lower associated risks? Here are some criteria to consider when selecting a lower-risk EB-5 project:

  1. Pre-Approved Project (for set-aside and TEA): Look for an EB-5 project that is “pre-approved” after adjudication by the USCIS and found to be conforming with the EB-5 regulations and practices.
  2. Mortgage/Security Position for Investors: It is crucial to ensure that the EB-5 investors’ interests are well-protected by the project’s structural safeguards, meaning their investment is secured by a priority lien on project assets. This provides substantial protection for their capital. Always look for a first- or second-priority mortgage on the proposed project assets.
  3. Job Creation and Cushion: Projects with a smaller percentage of EB-5 capital tend to have a larger job cushion, which is safer for EB-5 investors. Why?
  4. Construction Has Begun: Investing in a project that has already begun construction typically involves less risk than investing in a project on which construction1 has not yet begun.
  5. Bridge Financing: Using so-called “bridge financing” is an especially effective way of starting construction on a project while providing EB-5 investors with maximum jobs creation1. Why?
  6. At-Risk Requirement: The Eb-5 immigrant program is founded on the notion that the investment must be “at risk”. Any guarantees on the part of the project developer are thus prohibited; for an EB-5 investment to be at risk, there must be a chance of financial loss. Factors to be considered by the investor include contractual obligations, the ownership and the use of assets, and the transfer of investment amounts.


It is important to note that the USA EB-5 Immigrant Application involves significant financial risks and has stringent and specific eligibility requirements. The application process is complex and time-consuming. Expect to dedicate time and resources to conduct your own thorough research and due diligence before you commit to and invest into an EB-5 project. It is recommended you talk to qualified immigration professionals to determine if the program is a right fit for you.


Related Topics: United States EB-5 Visa (Immigrant Investor Program) | United States EB-1C Visa Application (Green Card for Intracompany Transferee)



If you wish to obtain more information or assistance, please visit the official website of Kaizen Immigration Services Limited at www.kaizenvis.com or contact us through the following and talk to our professionals:

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(ARTICLE CURRENTLY UNDER REVIEW)

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