Examining the Upcoming EB-5 Reform Bill: Benefits for Investors

On March 8, 2022, the upcoming omnibus spending package was released by Congress. A lengthy EB-5 reform bill was included on the spending package, and its changes will likely be implemented by March 15, 2022. This reform is one of the most thorough and far-reaching modifications to EB-5 policies in the visa program’s 32-year history.

Overview of Changes to the EB-5 Investment Program

  • The new minimum investment amount for projects located within targeted employment areas (TEAs) will be $800,000; projects outside TEAs will require a minimum investment of $1,050,000. Every five years, these investment thresholds will be adjusted for inflation.
  • The EB-5 Regional Center Program will be reauthorized through September 30, 2027. Any visa petitions filed by regional center investors on or before September 30, 2026, will be adjudicated regardless of whether the regional center program is reauthorized.
  • All current regional center investors with pending I-526 petitions will be “grandfathered” in.
  • The criteria for designating rural TEAs remain unchanged, while high-unemployment TEAs will now be designated by United States Citizenship and Immigration Services (USCIS) instead of by individual state agencies.
  • USCIS will now prioritize visa petitions from investors in rural TEA projects, and 20% of the total EB-5 visa pool will be reserved for rural TEA investors.
  • Several new integrity measures will be established to increase transparency, reduce the likelihood of fraud, and avoid threats to national security. For instance, all EB-5 migration agents, including those who operate outside of the United States, will be accountable for following USCIS regulations.
  • In regional center-sponsored projects, indirect employment can make up only 90% of the total job creation, and construction positions lasting less than two years can make up only 75%. This requirement entails that regional center projects will have to create at least one direct, full-time job.
  • EB-5 investors will now be allowed to file Form I-526 and Form I-485, Application to Register Permanent Residence or Adjust Status, concurrently.

What This Means for Regional Center Investors and Investors from High-Demand Countries

One of the most urgent issues in the EB-5 investment industry—the pending I-526 petitions filed by regional center investors before the program’s lapse—will finally be solved, thus averting the possibility of widespread litigation against regional centers. Moreover, the regional center program will likely be viewed as a much safer option going forward due to the grandfathering provision, which guarantees that all regional center investors will have their petitions adjudicated.

Further, even though all direct investors enjoy “Current” processing status, the reauthorization of the regional center program may result in renewed backlogs for high-demand countries, especially China. Investors from oversubscribed nationalities could be subject to cutoff dates in the coming months, making fast processing times for Form I-526 more crucial than ever. As rural TEA projects will now be prioritized, Chinese investors will likely choose such EB-5 offerings. Indian and Vietnamese investors, whose nationalities also have high demand, should favor rural TEA projects as well—if their I-526 petitions are approved before the Department of State (DOS) imposes cutoff dates on their countries, they will be able to avoid the resulting delays.

Benefits for H-1B and E-2 Visa Holders

The ability to file the I-526 and I-485 petitions simultaneously is a significant benefit for investors who already live in the United States under a different visa, such as H-1B or E-2 visa holders. If these investors submit both petitions concurrently and thereby adjust their status, they will be exempt from consular visa processing and receive work authorization right away. When applying for status adjustment, EB-5 investors will also be excused from any status violations under 180 days.

Indian nationals make up a large part of the total number of H-1B visa holders—approximately 75% of the H-1B visas granted in FY2020 went to Indian workers—therefore, investors of this nationality may be especially interested in filing for adjustment of status concurrently with Form I-526. Still, nationalities subject to cutoff dates are unable to file for adjusted status along with Form I-526, and India is at risk of becoming oversubscribed in the near future. This means that H-1B holders from India who are considering the EB5 investment visa should begin the process as soon as possible.

H-1B and E-2 visa holders currently in the United States should also look into expedited EB-5 projects, which grant investors vastly reduced processing times for Form I-526. However, expedited processing will be the most beneficial for EB-5 investors who are currently living outside the United States—instead of having to wait for upwards of two years before receiving their conditional permanent residency, they could relocate to the United States in a matter of four to ten months. Consequently, prospective investors would do well to look for projects with the potential to obtain expedited status.

The upcoming modifications to the EB-5 investment industry promise to make the visa process more transparent, efficient, and beneficial to all parties involved. Investors will particularly benefit from the new regulations, which may allow them to relocate to the United States more quickly and smoothly than before. EB5AN will gladly answer any inquiries about available EB-5 projects and EB-5 requirements in general.