What Can Pre-RIA Investors Do to Streamline the EB-5 Process?

The EB-5 Immigrant Investor Program has gone through numerous changes with the EB-5 Reform and Integrity Act of 2022 (RIA). While these changes introduced a number of benefits, pre-RIA investors face challenges with the system that newer investors can avoid. As such, these investors may be wondering what options are available to simplify their own EB-5 process.

This article will explore what pre-RIA investors can do to move forward in securing a U.S. Green Card under the EB-5 program.

Key Changes Brought by the RIA

In 2022, the U.S. Congress enacted the EB-5 Reform and Integrity Act to enhance the integrity and security of the EB-5 Immigrant Investor Program. The main aim was to protect investors, encourage more transparency, and ensure economic growth through investments. For many investors, the RIA brought about beneficial changes that simplified the EB-5 process, especially for those investing in rural and high-unemployment targeted employment areas (TEAs).

Concurrent Filing

One of the biggest changes for post-RIA investors is the ability to file Form I-526E and Form I-485 concurrently. This allows investors to legally live, work, and study in the U.S. while awaiting approval for their Green Cards.

Sustainment Period

The RIA brought some important updates to the rules around the sustainment period for investors. Previously, they had to keep their investment “at risk” throughout their entire conditional residency, which sometimes lasted until their I-829 petition was approved. Now, the new rule defines a specific two-year period for maintaining the investment, starting from the point when funds are deployed to the job-creating entity. This change means investors no longer need to keep their funds tied up indefinitely, even if there are delays in processing.

Processing Times

Under the new law, investors participating in rural TEA projects are experiencing faster processing times for their petitions. Some approvals are received in as little as 12 months, which is an extreme improvement to the multi-year waiting periods that were common before the RIA.

Reserved Visas

The RIA introduced reserved visa categories for specific project types, including rural TEA projects, high-unemployment area projects, and infrastructure projects. This allocation of visas ensures that a portion of available visas are set aside for these types of projects, which are currently not affected by backlogs.

Challenges Faced by Pre-RIA Investors

While the RIA brought plenty of improvements to the EB-5 program, many of the beneficial changes from the RIA do not apply to pre-RIA investors. As a result, these investors have to work with a more challenging and less efficient system.

Longer Wait Times

The backlog of EB-5 applications that existed before the RIA remains a significant problem for pre-RIA investors. For many, the processing times can last several years since their petitions must be adjudicated under the pre-2022 rules. Even if their projects meet all the necessary requirements, pre-IRA investors often face a much longer waiting period compared to those who filed under the RIA.

Ineligibility for Concurrent Filing

Unlike post-RIA investors, pre-RIA investors cannot file Form I-485 concurrently with their initial immigrant petition, even if they reside in the U.S. in valid nonimmigrant status. This prevents them from enjoying the benefits of a Green Card while their petitions are being processed through work and travel permits. It also translates into longer processing times, since they have to wait for their I-526 approval before they can file for adjustment of status.

Options for Pre-RIA Investors

Unfortunately, most of the beneficial changes introduced by the RIA are exclusive to post-RIA investors. Pre-RIA investors are not eligible for concurrent filing or the faster processing times and availability that come with set-aside visa quotas. However, there are still a few options available for pre-RIA investors to potentially improve their circumstances.

Continue With the Original Petition

For pre-RIA investors, continuing with their original petitions might be the most straightforward move. Although this approach may involve longer wait times, the investment remains in place, the project continues to create the necessary jobs, and the priority date remains unchanged. This is the simplest option but might not be the best for those looking for a faster way to get U.S. residency. However, it does prevent the need to start over or reinvest.

File a Mandamus Lawsuit

For investors experiencing significant delays, filing a mandamus lawsuit could be an effective plan. This lawsuit pushes USCIS to take action on delayed petitions and has been used successfully by many investors looking to speed up processing times.

Consider Reinvestment

If your regional center loses its designation or your EB-5 project doesn’t meet the required criteria, reinvestment is an option. Investors can shift their capital into a new qualifying project, which can help them keep eligibility for a Green Card, even if their original investment doesn’t meet the requirements.

Consider Other Visa Options

Working with an immigration attorney about other visa options can be helpful. Depending on your personal situation, there might be other visa types that allow you to live and work in the U.S. while your EB-5 petition is pending. An attorney could also help find which visa aligns best with your goals.

The Importance of Consulting With an EB-5 Immigration Attorney

A knowledgeable immigration attorney can evaluate your unique situation, provide guidance on whether you should continue with the original petition or pursue a new investment, and help with the documentation and overall process.

Whether you’re considering starting a new investment under the new rules or seeking to improve your current situation, a lawyer can help you understand the process and improve your chances of success.

You can also seek guidance from seasoned EB-5 industry professionals to learn more about your options. To do this, book a one-on-one call with our EB-5 team today.