The EB-5 Program Offers New Benefits for Non-Resident Visa Holders

The recent overhaul of the EB-5 Immigrant Investor Program, brought about by the EB-5 Reform and Integrity Act of 2022, has created new challenges that businesses and regional centers must surmount in order to remain compliant and qualify for EB-5 funding. At the same time, it has significantly reduced investors’ financial and immigration risk with stringent integrity measures, and it allows investors who already reside in the United States under a non-EB-5 visa to file Form I-485 concurrently with Form I-526.

Implications for Non-Resident Visa Holders

Holders of the H-1B, F-1, and E-2 visas stand to benefit greatly from the ability to file the aforementioned forms simultaneously. Instead of having to undergo the lengthy process of consular visa processing or obtain sponsorship, these investors will be eligible to apply for EB-5 conditional permanent resident status straightaway. Even though the Reform and Integrity Act was signed into law very recently, and it remains unclear exactly how the ensuing changes will be implemented, EB-5 investors applying for adjustment of status will most likely be allowed to apply for work authorization and travel permits. If approved, these freedoms would grant investors the benefits of a U.S. green card—even before they officially obtain one. This arrangement would prove ideal for investors whose temporary visas are nearing expiration and who want to continue working or studying in the United States.

It is important to note that the EB-5 Regional Center Program has finally received a long-term reauthorization until 2027, meaning that investors in regional center-sponsored projects no longer have to fear that another legislative lapse will compromise their I-526 petitions. In fact, United States Citizenship and Immigration Services (USCIS) now guarantees that all regional center investors who file Form I-526 on or before September 30, 2026, will have their applications adjudicated even if the regional center program expires once more.

The importance of the grandfathering clause is especially evident as the EB-5 investment industry comes out of a nearly one-year lapse of the regional center model. During this period, holders of non-resident visas who sought to adjust status through an EB5 investment in a regional center project were unable to move forward with the process. Temporary visa holders may have thus experienced restrictions on their ability to work in the United States. To complicate matters, the delays in consular processing brought about by the COVID-19 pandemic may have also kept many EB-5 applicants from obtaining their initial two-year green cards.

What is Next for the EB-5 Industry?

The above is certainly good news for EB-5 investors, but the new influx of I-526 petitions resulting from the renewal of the regional center program may cause new challenges. Many industry analysts expect high-demand countries such as India to go into a processing backlog, which would make investors from these nationalities subject to cutoff dates. Perhaps more seriously for non-resident visa holders, they would also be ineligible for concurrent filing. Any investors from high-demand countries who are interested in adjusting status quickly through an EB-5 investment are advised to contact an immigration attorney and begin the process.

Each month, the Department of State (DOS) releases a monthly Visa Bulletin identifying which countries are undergoing retrogression for the EB-5 visa. Once the regional center program officially becomes operative in mid-May 2022, the industry will certainly be interested in seeing which nationalities, if any, will be subject to cutoff dates.