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Update on the EB5 Visa Reform and Integrity Act 2021

Long term 5 year extension of the EB-5 program

As some of you might know, the EB-5 Regional center program is scheduled to end June 30 2021, unless extended. Since 2016, Congress has been putting away much needed changes to the EB-5 program introduced in 1990 and instead Congress was simply putting a band-aid on the program by passing short term extensions to the program. Some of the extensions were only for a few weeks and most were for a period of 4-6 months. But finally, the EB-5 Visa program got a bipartisan boost as Senators Chuck Grassley (R-Iowa), Ranking Member of the Senate Judiciary Committee, and Patrick Leahy (D-Vt.), former chairman of the Senate Judiciary Committee, introduced the EB-5 Reform and Integrity Act of 2021. Mainly, the bill proposes a long term 5-year reauthorization to the EB-5 regional center program while adding various integrity measures to tighten the oversight of Regional Centers and increased protections for EB-5 Investors. Senators Grassley and Leahy released a joint statement after introducing the bill.

Proposes speeding up of I-526 petitions processing

The EB-5 reauthorization bill has some key benefits for investors of the EB-5 visa program. Most notably, it wants the USCIS to speed up processing of I-526 petitions by setting up timelines. The bill asks USCIS to study and enact a fee structure to process EB-5 petitions in 90/120 days. This is akin to a premium processing model that the USCIS uses in other EB visa categories. The fee structure enactment will take up to an year after the bill is enacted for USCIS to study the process of creating a fee structure.

Concurrent filing of AOS with I-526 petition for countries that are “current”

This might be the most important revision to the EB-5 program for investors already in the US. It allows for concurrent filing of the adjustment of status (AOS/I-485) petition along with the I-526, if the investor’s country is current as per the monthly Visa bulletin. This will be a huge benefit for EB-5 investors as other categories. ie., EB-1/2/3 allow concurrent filings. It allows EB-5 investors to get an EAD/AP as early as 3 months after making their investment and filing their EB-5 petitions.

Integrity and oversight on Regional centers and EB-5 projects

The bill requires regional centers to provide annual statements to DHS and to their investors accounting for investor capital and certifying compliance with program requirements. It also requires background checks of regional center and certain project principals, and requires that regional center principals, responsible for overseeing the foreign investor’s participation in this visa program, be U.S persons or lawful permanent residents. The bill requires EB-5 projects utilize a fund administrator or commission an independent annual audit to prevent the misuse of investor funds. It also establishes an “EB-5 Integrity Fund” in which regional centers and investors would pay fees to be used by DHS to conduct audits and site visits to detect and investigate fraud in the United States and abroad. Importantly, the bill requires DHS to perform site visits to EB-5 projects.

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