The EB-5 Reform and Integrity Act: How It Helps Investors and What’s Changing

The EB-5 Reform and Integrity Act of 2022 (RIA) was enacted to address various longstanding issues within the EB-5 industry, including concerns related to oversight and program efficiency. To improve transparency and strengthen the integrity of the regional center program, the act introduced several key reforms aimed at enhancing accountability and streamlining processes.

Beyond enhancing oversight and program integrity, the RIA introduced several provisions designed to benefit EB-5 investors. This article examines these key investor advantages and explains how prospective applicants can make the most of them—especially as visa retrogression becomes a growing concern.

What Is the EB-5 Reform and Integrity Act of 2022?

The U.S. Congress passed the RIA in March 2022, and then-President Biden signed the act into law later that month.

With uncertainty around the EB-5 program’s status and concern around industry standards, the law reauthorized the regional center program and implemented measures to combat fraudulent practices, root out bad actors, and protect good-faith investors.

This legislation also changed the EB-5 minimum investment amount to $800,000 for targeted employment area (TEA) investments and $1,050,000 for non-TEA investments.

How Does the RIA Help Investors?

The RIA brought significant changes to the EB-5 industry that have helped investors obtain their EB-5 Green Cards faster.

Set-Aside Visas

The RIA introduced a reserved “set-aside” category of EB-5 visas. Specifically, it reserves 32% of EB-5 yearly visa allocations as “set-aside” visas. Of the 32%, 20% is reserved for rural TEA investments, 10% for high-unemployment TEA investments, and 2% for infrastructure projects.

The set-aside visas were a welcome development for investors from high-demand countries like China and India, countries which face heavy backlogs in the unreserved category. Instead of having to wait at least 55 months in the unreserved category, the reserved visa provision has helped many Chinese and Indian investors obtain their EB-5 Green Cards in under 10 months.

The RIA also mandates that the United States Citizenship and Immigration Services (USCIS) prioritize processing rural TEA petitions. As a result, rural TEA investors enjoy faster processing times, a lower investment threshold than non-TEA categories, and 20% reserved visas.

Concurrent Filing

Before the enactment of the RIA, EB-5 investors already in the U.S. on non-immigrant routes had to receive I-526E approval before filing for adjustment of status. This prolonged their waiting times, as they had to wait several months after obtaining their I-526E approval to receive their conditional Green Cards.

Thanks to the changes implemented through the RIA, EB-5 investors already in the U.S. can now file for adjustment of status (Form I-485) simultaneously with their Form I-526E petition. This is known as concurrent filing.

The concurrent filing provision also enables investors whose non-immigrant visas will soon expire to maintain legal status in the U.S. Once they file their Form I-485, their status automatically changes to “pending adjustment.”

Crucially, investors can also simultaneously file for employment authorization documentation (EAD) and advance parole (AP) to gain work and travel flexibility. The EAD and AP are typically adjudicated within 90 days, enabling investors to work in the U.S. and travel freely while awaiting their EB-5 adjudication.

Concurrent filing is only possible, however, if a visa is immediately available to the investor when they submit their I-526E petition. This means you can only concurrently file for adjustment of status if there are no backlogs for your chargeability area (determined by your EB-5 category and country of origin) when you file your Form I-526E. This is why it is especially important for prospective Chinese and Indian investors to act fast before the Visa Bulletin shows retrogression in the reserved set-aside categories.

Increased Oversight of Regional Centers

The RIA also introduced measures to increase regional center transparency and make regional centers more accountable to USCIS.

These measures affect everyone involved in the regional center, from its administrators to fund managers to overseas marketing agents, with severe penalties for non-compliance.

Some of the most important of these measures include the following:

• Background Checks: The RIA authorizes USCIS to conduct extensive background checks on regional center managers. Persons with criminal convictions within the last 10 years or who have been liable in a case of fraud won’t be allowed to participate in running a regional center.
• Strict Reporting Requirements: The RIA requires regional centers to notify USCIS before making any changes to their management team or business structure. They must also submit regular financial reports to both USCIS and their investors.
• New Commercial Enterprise Approval: Regional centers must file a Form I-956F “project approval request” for every EB-5 project offering. The submitted I-956F must include all the project’s investment documents, operation strategies, and all related fees. USCIS analyzes the submission to ensure strict compliance with all regulatory policies before approval.
• Third-Party Fund Administrators: Regional centers must provide annual financial reports verified by third-party fund administrators or obtain audited financial statements.
• EB-5 Marketers: All EB-5 project promoters and migration agents, including those outside the U.S., must register with USCIS.
• EB-5 Integrity Fund: Each regional center must make an annual contribution to an integrity fund. USCIS uses these funds to oversee regional center activities, including making in-person site visits.
• Non-Compliance Penalties: USCIS can fine, suspend, or terminate non-compliant regional centers. They can also debar non-compliant individuals or job-creating entities from the program.

Investor Protection Measures

In addition to stricter accountability and transparency requirements for regional centers, the RIA also provided measures to protect good-faith EB-5 investors from circumstances beyond their control.

Some of its changes include the following measures:

• Protection From Debarred EB-5 Projects or Terminated Regional Centers: Investors whose funds were placed in a regional center or EB-5 project that is terminated or debarred can now invest in another project or have their project affiliated with another regional center within 180 days. This means they can maintain their eligibility and retain their priority date. Conversely, before the RIA, such investors would have become ineligible for an EB-5 visa.
• Extended Job Creation Window: EB-5 investors can now file Form I-829 after two years, even if their investment hasn’t created the required 10 jobs, provided these jobs are “actively in the process” of being created. This extended window means investors will be given more time to meet the job creation requirement.

Partner With EB5AN to Start Your EB-5 Journey and Avoid the Upcoming Backlogs

Although the RIA’s concurrent filing provision remains available as of now, investors from high-demand countries will no longer enjoy this benefit once retrogression hits the set-aside categories—and with the January Visa Bulletin warning that such backlogs are approaching, prospective EB-5 investors now have limited time to file their EB-5 petitions to enjoy concurrent filing.

The best way to avoid missing out on concurrent filing and most of the benefits introduced by the RIA is to start your EB-5 process today.

EB5AN can help guide you through your EB-5 journey. In 10+ years of practice, we’ve helped over 2,300 families from 70+ countries become U.S. permanent residents through the EB-5 program. We provide our clients with first-rate, low-risk regional center projects with a 100% USCIS approval rate.

Schedule a free one-on-one consultation with our EB-5 expert team today to learn how to start your EB-5 process.