On April 29, 2022, USCIS posted significant updates to their website regarding the EB-5 visa investment program. Below is a summary of the updates and their impacts.
USCIS will require any new entity seeking regional center status to apply using a new Form I-956 for regional center designation. The requirements of this new Form I-956 have not been published as of the date of this post but will be forthcoming from USCIS soon.
From the USCIS Website:
“Entities seeking to be designated as a regional center are required to file Form I-956, Application for Regional Center Designation. USCIS will be publishing this new form, including the form instructions, with additional information regarding the filing process by May 14, 2022.”
This means that USCIS will have a completely new designation Form I-956 and associated requirements (fees / required information, etc) for an entity to receive regional center status.
Regional centers designated prior to March 15, 2022, under Form I-924 are no longer approved and are not required to apply for redesignation under Form I-956 unless they desire to accept new EB-5 investment post March 15, 2022.
From the USCIS Website:
“The EB-5 Reform and Integrity Act of 2022 repealed the legacy Regional Center Program. As a result, previously designated regional centers must reapply by filing the new Form I-956, Application for Regional Center Designation.”
This means that USCIS is requiring each EB-5 regional center to file a recertification application, demonstrating that the regional center is in compliance with the EB-5 Reform and Integrity Act of 2022, prior to accepting new EB-5 investors in regional center sponsored EB-5 projects.
Previously approved regional centers cannot file Form I-924 to seek redesignation and are no longer required to file Form I-924A.
From the USCIS Website:
“USCIS will reject all Form I-924 and Form I-924A filings. Since the EB-5 Reform and Integrity Act of 2022 repealed the legacy Regional Center Program and any prior designations, there are no grounds to file amendments or annual certifications.”
This means that going forward, will not be any advantage to entities that were previously designated as regional centers prior to March 15, 2022. All entities will be on the same playing field when it comes to seeking designation as a regional center with Form I-956.
New EB-5 investors seeking to invest in regional center sponsored projects must wait until the regional center they have selected has both: (i) applied for redesignation using Form I-956 and receives approval from USCIS, and (ii) files a project application for the specific investment the investor wants to invest into after receiving USCIS approval of Form I-956.
From the USCIS Website:
“Individuals seeking status as an immigrant investor whose investment project is associated with a regional center (with an approved Form I-956 after May 14, 2022), may file a Form I-526, Immigrant Petition by Alien Entrepreneur, only after the regional center has submitted a project application and received a receipt number for that application.”
This means that all new EB-5 investors seeking to invest and file an I-526 petition in an EB-5 project at $800K/$1.05M will need to wait an unknown amount of time (at least months) for regional centers to apply for and be approved by USCIS as regional centers under the new rules.
USCIS has resumed processing of I-526 petitions of EB-5 investors who invested and filed I-526 petitions prior to March 15, 2022, and will continue to apply the EB-5 regulations in place at the time of filing for prior I-526 petitions.
From the USCIS Website:
“USCIS has resumed processing regional center-related Form I-526, Immigrant Petition by Alien Entrepreneur, filed on or before June 30, 2021, the sunset of the previous regional center program. USCIS will adjudicate those Forms I-526 petitions according to the applicable eligibility requirements at the time such petitions were filed (that is, the eligibility requirements in place prior to the enactment of the new legislation on March 15, 2022).”
This means that prior EB-5 investors will be grandfathered under the prior EB-5 rules in place at the time of the filing of their I-526 petitions.
Regional centers previously designated are not required to file Form I-956 for redesignation unless they wish to accept new EB-5 investment in the future.
From the USCIS Website:
“While repeal of the prior immigrant investor program requires previously designated regional centers to reapply for designation if they wish to continue their participation, the need to reapply does not impact petitions pending prior to March 15, 2022 associated with those entities; rather the impact is limited to the ability to support new petitions in the future. Despite the previously approved regional center associated with your petition no longer being designated, you may still establish eligibility by demonstrating compliance with other applicable requirements (primarily investment and job creation, including indirect job creation as provided under the former statute).”
This means that inactive regional centers no longer active will not be required to file Form I-956.
Direct EB-5 investments are still allowed, but only 1 EB-5 investor can join a direct EB-5 project without the need to wait for a regional center to apply for and approve approval of Form I-956 for regional center redesignation. Pooled direct EB-5 investments with multiple EB-5 investors are not allowed.
From the USCIS Website:
“Pooled standalone cases are not allowed under the EB-5 Reform and Integrity Act of 2022; therefore, USCIS will reject any petition based on a pooled, non-regional center investment filed on or after March 15, 2022. USCIS will adjudicate pooled standalone cases filed before March 15, 2022 based on eligibility requirements at the time such petitions were filed.”
This means that there is going to be another prolonged, unknown period (at least months) where the only option available for EB-5 investors seeking green cards is to join a direct EB-5 project (as the single investor).
USCIS will apply the more restrctive “donut” TEA method when determining if a project site qualifies as a high unemployment TEA.
From the USCIS Website:
“USCIS will review the area claimed as a high unemployment area when adjudicating the project application for regional center filings or the individual’s petition for standalone investments. A high unemployment area is a census tract, or contiguous census tracts, where the new commercial enterprise is principally doing business, experiencing unemployment of at least 150% the national average. When calculating the weighted unemployment rate, the area may include any census tracts directly adjacent to those where the NCE is principally doing business.”
This means that USCIS will apply the prior, more restrictive “donut” TEA method that was in place when the EB-5 program was at $900K. Click here to view our national TEA map.
USCIS has discretion when determining if a project qualifies as an “infrastructure” EB-5 project and is therefore eligible for TEA status and the 2% visa set.
From the USCIS Website:
“USCIS will determine if the investment is in a qualified infrastructure project when adjudicating the regional center’s project application. An infrastructure project is a capital investment project in a filed or approved business plan, which is administered by a governmental entity (such as a federal, state, or local agency or authority) that is the job-creating entity contracting with a regional center or new commercial enterprise to receive capital investment under the Regional Center Program from alien investors or the new commercial enterprise as financing for maintaining, improving, or constructing a public works project.”
This means that USCIS has sole discretion over the eligibility of a project as an “infrastructure” project.
EB-5 regional centers can now redeploy EB-5 investment funds to any U.S. state or territory to satisfy the USCIS at-risk requirement for EB-5 investment without remaining affiliated with a USCIS-approved regional center.
From the USCIS Website:
“The EB-5 Reform and Integrity Act of 2022 repealed the former regional center statute and previously approved regional centers are no longer designated. The EB-5 Reform and Integrity Act of 2022 also allows for further deployment of capital anywhere in the United States or its territories. Therefore, including for petitions filed pre-enactment, further deployment is not required within the same regional center or within any regional center’s geographic area.”
This means that regional centers now have the flexibility to redeploy funds without any geographic restriction or regional center affiliation requirements.
Conclusions and the path forward for new EB-5 investors seeking green cards post-March 15, 2022
Schedule a call with our team to learn about direct EB-5 investments available now at $800K; there is no wait to file an I-526 petition today in a direct EB-5 project. EB5AN is also preparing its EB-5 regional center projects to comply with the new rules. We are also happy to discuss our project documents, and investor qualifications, and connect you with an experienced EB-5 immigration attorney with a 100% USCIS approval rate.
EB5AN will apply for regional center designation using Form I-956 when it becomes available, but in the meantime, we are actively working with EB-5 investors seeking direct EB-5 projects at $800K, who are not willing to wait for an unknown period for USCIS to review and approve new Form I-956 regional center designation applications.
