2022 EB–5 Reform and Integrity Act enacted with new reforms and new limits

Congress and the EB-5 industry have finally come to an agreement on a New “EB–5 Reform and Integrity Act of 2022” bill and reauthorization of the EB-5 Regional center program till Sep 30 2027. After Congress passed the bill, President Biden signed the bill into law on March 15 2022. This reauthorizes the EB-5 program again and existing investors petitions will be once again processed after a long 8 month delay. There are some major changes in the new EB-5 law, some of which I have written about previously, but also some new additional items were added.

New EB-5 Investment Limits

Under the 2022 EB–5 Reform and Integrity Act, the Rural, TEA/High Unemployment area amounts are now going to be a minimum of $800,000 USD and the Non-TEA area amounts will be $1.05 Million. Earlier, the TEA minimum investment amount was $500,000 and also $900,000 for a brief while. The Non-TEA amount has undergone a $50,000 increase from the previous $1 million limit to $1.05 Million. There are other changes to the program, some of which I will outline below.

Grandfathering of EB-5 petitions

The 2022 EB–5 Reform and Integrity Act also finally does away with the short term reauthorizations that have hampered the program for the past 5 years. The program will be extended for a period of 5 years to September 30 2027. Additionally, all existing and future EB-5 investors will be protected from any and all further lapses in the EB-5 program reauthorization as long as they file their EB-5 petition before Sep 30 2026. So investors don’t have to worry about multi month delay due to reauthorization lapses we have seen in the past.

Concurrent filing of EB-5 petition and Adjustment of Status and child age lock

Investors who are already in the US on an F-1 or H-1 visa or other temporary visa categories can now concurrently file for Adjustment of Status (AOS, also called Form I-485) when they file their initial EB-5 I-526 as long as there is a EB-5 visa available at that time of filing based on the Investor’s country of birth. This was not possible before.

Benefit of Concurrent filing: An investor who files a concurrent AOS petition along with the I-526 petition can now stay in the US till the investor receives their conditional green card – Even if their F-1 or H-1 or other temporary visa expires. Most importantly, Investors can file for the Employment Authorization Document (EAD)  and Advanced Parole (AP) when filing for their AOS with their I-526. The EAD/AP can take about 6 months to process and once EAD/AP is approved, the investor can work in the US for any employer or start their own business and travel in and out of the country freely.

Also, concurrent filing of the AOS petition along with the I-526 petition allows for freezing of children age at the time of filing. So for example, when an investor who has a child aged 20 years, 7 months, from a country that is current, like India files an EB-5 petition along with an AOS petition, the child’s age is locked at 20 years, 7 months and the child will be eligible for a green card in the future when the investor gets approval.

Priority processing for Rural projects and visa set asides

Investors investing in a rural area project will `be eligible for priority EB-5 processing. Although we do not know how long will it take USCIS to priority process an Investors petition as this is a brand new provision in EB-5, the general consensus among a sampling of EB-5 attorneys is that it will take around 6 months to an year. In addition to priority processing, there will be a set aside of 20% green cards every year for investors in rural area projects from the total limit of 10,000 EB-5 green cards per year. TEA projects have a 10% set aside and infrastructure projects will have a 2% set aside.

TEA designation narrowed

The definition of a TEA area has also been considerably narrowed. Now a TEA area designation can only be assigned if the project is in a TEA census tract or immediately adjacent to a TEA census tract. Earlier rules were very lenient allowing for multiple census tracts to be combined to come up with a TEA designation. Only the secretary of the Department of Homeland Security or a designated official of the Secretary can issue a TEA as compared to earlier when many State officials could assign TEA designations.

EB-5 Processing times

The 2022 EB–5 Reform and Integrity Act also directs USCIS to come up with a solution to speed up processing times to 120 days for I-526 petitions. But, it gives the USCIS one year to come up with a solution after which it has to be implemented. I am very skeptical of this particular provision, realistically, I don’t see USCIS improving their processing times to 120 days, but who knows, never say never.

Program Integrity measures under the 2022 EB–5 Reform and Integrity Act

The 2022 EB–5 Reform and Integrity Act has many new integrity measures aimed at protecting EB-5 investors by enforcing audits, EB-5 project site visits, requirements for annual reports from regional centers, additional disclosure requirements and compliance checks on EB-5 regional centers and the stakeholders involved. There are also stricter punishments and penalties for wrongdoings.

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