EB-5 reauthorization 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
The TEA 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, but now it will be $800,000. 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 EB-5 reform bill is finally doing away with the short term reauthorizations that have hampered the program for the past 5 years and will be extended for a period of 5 years upto September 30 2027. On top of that, 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 are currently seeing.
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 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. On top of that, Investors can file for EAD/AP when filing for 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 inside the US and travel in and out of the country.
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 get priority EB-5 processing. Also, 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% seta 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 bill 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
The bill also 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.