We provide additional guidance on our interpretation of the changes to the EB-5 program in the Immigration and Nationality Act (INA) made by the EB-5 Reform and Integrity Act of 2022 (RIA), specifically the required investment timeframe and how we treat investors who are affiliated with a discontinued regional center.
This guidance clarifies the required investment timeframe for EB-5 investors who file Form I-526, Immigrant Petition by Self-Investor, or Form I-526E, Immigrant Petition by Regional Center Investor, on or after March 15, 2022. as specified in API.
For investors seeking to remove the conditions for their permanent resident status under INA 216A based on an EB-5 immigrant visa petition filed on or after the RIA’s enactment (post-RIA investors), the RIA removed the requirement that the investor must to maintain their investment throughout their probationary period. The RIA also amended INA 203(b)(5)(A)(i) (the general classification requirement for investing or actively in the process of investing the requisite amount of capital in a new business enterprise) by adding new text to be expected the investment required by INA 203(b)(5)(A)(i) to remain invested for at least two years.
Because of these changes made by the RIA, investors who file petitions for classification after the RIA takes effect are no longer required to maintain their investment throughout their probate, which could be many years in the future and depend on factors beyond investor control such as visa availability.
Instead, the INA now only requires that the investment be expected to remain invested for at least two years, subject to job creation requirements being met. Although the statute does not expressly specify when the two-year period under INA 203(b)(5)(A)(i) begins, we construe the beginning date as the date on which the requisite amount of the qualified investment is made. In other words, we will use the date on which the investment is made in the new commercial enterprise and is at risk in accordance with the applicable requirements, including being made available to the job-creating entity. If the investment was made more than two years before the I-526 or I-526E petition was filed, the investment must generally still be maintained at the time the I-526 or I-526E is properly filed in order for us to properly assess eligibility.
Prior to the enactment of the RIA, the termination of a regional center would have been considered a material change in eligibility for investors who had not yet obtained conditional permanent resident status and, therefore, likely would have resulted in the denial or revocation of related investor petitions. The RIA added a new provision to INA 203(b)(5)(M) that allows bona fide investors associated with discontinued regional centers to retain eligibility under certain circumstances. Because the statute does not expressly specify whether it applies only to post-RIA investors or also to pre-RIA investors, we also provide guidance on how we interpret this new provision for pre-RIA investors upon regional center termination:
- We interpret INA 203(b)(5)(M) to apply to pre-RIA investors affiliated with a discontinued regional center. Instead of applying strict time frames under INA 203(b)(5)(M), we will extend the deadline for investors before RIAs to respond to a termination notice from a regional center until the agency rules on their Form I petition- 526. If necessary, we may issue a Request for Evidence or Notice of Intent to Deny to the investor to determine whether it continues to be eligible.
- We may use procedural flexibilities to extend the 180-day response deadline for notices of continued eligibility.
- Where a regional center is terminated for purely administrative non-compliance, we can determine that the termination will generally not adversely affect an investor’s basic eligibility before the RIA, as their investment and resulting job creation will remain undisturbed.
- We may choose not to extend the applicable response deadlines when a regional center is terminated for material reasons that may affect the continued eligibility of its affiliated investors.
For more information about the EB-5 Immigrant Investor Program or USCIS, please visit uscis.gov or follow us at TwitterInstagram, YouTube, Facebook and LinkedIn.