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USCIS Provides Additional Guidance for EB-5 Program

USCIS Provides Additional Guidance for EB-5 Required Investment Timeframe and Investors Associated with Terminated Regional Centers

On October 11, 2023, USCIS provided additional guidance on its interpretation of changes to the EB-5 immigrant investor program. The guidance focuses on the required investment timeframe and how USCIS treats investors associated with a terminated regional center.

What is the EB-5 Program?

Congress created EB-5 Immigrant Investor Program in 1990. The Program’s purpose is to stimulate the U.S. economy through job creation and capital investment by foreign investors. Investors may also qualify for EB-5 classification by investing through regional centers. USCIS designates such regional centers based on proposals for promoting economic growth.

On March 15, 2022, President Biden signed the EB-5 Reform and Integrity Act (RIA). The RIA created new requirements for the EB-5 immigrant visa category and the Regional Center Program. Immigrant visas are authorized under the Regional Center Program through Sept. 30, 2027. 

USCIS’ Additional Guidance for EB-5 Program

EB-5 investors may petition USCIS for status as a U.S. immigrant by filing  Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor.

Upon adjustment of status or admission to the United States, the immigrant investor will be a conditional permanent resident (CPR). To seek removal of the conditions, the immigrant investor must file a Petition by Investor to Remove Conditions on Permanent Resident Status (Form I-829). They must file the petition within 90 days prior to the 2-year anniversary of the date USCIS granted conditional permanent resident status.

Additional Guidance on the Required Investment Timeframe

USCIS’ additional guidance clarifies the required investment timeframe for investors who file the immigrant petition on or after March 15, 2022, as follows:

Investors needs not to sustain their investment throughout their conditional residence

For investors seeking to remove conditions on their permanent resident status based on an EB-5 immigrant petition filed on or after March 15, 2022 (post-RIA investors), the RIA removed the requirement that the investor must sustain their investment throughout their conditional residence.

Investment must be expected to remain invested for at least two years

The RIA also modified the general requirement for investors to invest or be actively in the process of investing the requisite amount of capital in a new commercial enterprise (INA 203(b)(5)(A)(i)). The RIA modifies the requirement by adding new language that the investment required must be expected to remain invested for at least two years.

USCIS interprets the start date for the investment as the date the investor made the requisite amount of qualifying investment. In other words, USCIS will use the date the investor contributed to the investment to the new commercial enterprise and placed it at risk. This includes the investor made the investment available to the job-creating entity. If invested more than two years before filing the I-526 or I-526E petition, the investment should generally still be maintained at the time the petition is properly filed.

Additional Guidance on Regional Center Termination

USCIS’ additional guidance also clarifies how USCIS interprets a new provision the RIA added regarding regional center termination as follows:

Good faith investors may retain eligibility in certain circumstances

Before enactment of the RIA, the termination of a regional center would likely have resulted in associated investor petition’s denial or revocation. This is because USCIS would have considered such a termination a material change to eligibility for investors who had not yet obtained conditional permanent resident status.

The RIA added a new provision that permits good faith investors associated with terminated regional centers to retain eligibility in certain circumstances. Under the new provision, following the termination or debarment from the program of a regional center, new commercial enterprise, or job creating entity, investors with a pending or approved petition may retain eligibility under certain circumstances.

USCIS also provides the following guidance on how it interprets this new provision:

  • USCIS interprets the new provision to apply to pre-RIA investors associated with a terminated regional center as well.
  • Depending on the circumstance, USCIS may use the procedural flexibilities to extend the response deadline for 180 days for notices of continued eligibility.
  • When a regional center is terminated for purely administrative noncompliance, USCIS may determine that the termination would generally not adversely affect a pre-RIA investor’s basic eligibility. This is because their investment and resulting job creation would remain undisturbed.
  • USCIS may choose not to extend applicable response deadlines when a regional center’s termination is due to substantive reasons that may affect continued eligibility of their associated investors.

For the USCIS’ original announcement, please visit here.

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