The EB-5 Immigrant Investor Visa

New Process and Benefits for Investors

Under the EB-5 Reform and Integrity Act of 2022 (“RIA”)

By Carolyn Lee

The EB-5 Reform and Integrity Act of 2022 (“RIA”), enacted on March 15, 2022, brought a wave of changes to the EB-5 visa program. This memo explains the EB-5 process for investors under RIA. Please also see RIA FAQs posted on the IIUSA website.

EB-5 Requirements

The EB-5 visa is a conditional permanent residency visa – otherwise known as a conditional “green card” – granted to qualifying investors and dependents including spouses and children under 21 years.

Investment.

The process begins with a qualifying investment. The investment must meet a certain threshold – $800,000 for investments in a “targeted employment area” (“TEA”) and $1,050,000 for investments outside TEAs. Under RIA, TEAs can only be determined by the U.S. Department of Homeland Security (“DHS”).

Jobs.

The investment must create the required number of jobs, which is 10 full-time U.S. jobs per investor.

Regional center vs. Direct.

An investment may be in either a regional Center-based project or in the investor’s direct enterprise:

  • If in a regional center project, the 10 jobs may be “indirect,” meaning they may be jobs modeled to be created because of the investment.
  • If in a direct enterprise, the jobs must be “direct,” meaning full-time jobs held by direct employees of the enterprise.

Note that the Regional Center Program is not yet permanent. This means that the U.S. Congress must pass a law reauthorizing the parts of the Regional Center Program that expires. The current expiration date is September 30, 2027.

Business Plan Preapproval.

If investing in a regional center project, the regional center must first file a business plan application for that project with the United States Citizenship and Immigration Services (“USCIS”), the immigration agency within DHS.

EB-5 Process

Concurrent Filing: EB-5 + AOS.

Under RIA, investors and family members may file their EB-5 petitions (Form I-526) concurrently with an adjustment of status (“AOS” or Form I-485) filing if there is no visa backlog for the investor’s country of origin.

Currently, this is everyone except mainland China-born investors. To qualify for AOS, the investor and family members must be lawfully admitted into the U.S. and meet adjustment requirements.

The EB-5 + AOS concurrent processing is particularly beneficial for investors already working in the U.S. (“In-U.S. Investors”). In-U.S. investors typically meet AOS requirements and may have green card processes already underway in EB-2 and EB-3 categories. However, gross backlogs prohibit concurrent AOS filing in those categories for professionals from India and China.

In 2022, there are double the visa numbers normally available in the EB-5 category due to the overflow of unused visas from 2021.

Removal of Conditions.

After admission into Conditional Residency – after AOS approval of landing in the U.S. with an Immigrant Visa issued by a Consulate – the investor is granted conditional residency for 2 years. Within 90 days before the 2 years expires, the investor must file a petition to remove conditions (Form I-829), proving that the jobs were created and investment sustained.

Grandfathering.

For investors in regional-center-based projects, if the Regional Center Program expires or lapses, their cases will be protected under RIA. Any new laws changing requirements will not affect them. Moreover, their immigration process will proceed despite any lapse.

Our Role

Attorney Carolyn Lee has been engaged in EB-5 legislative advocacy since 2009 and proudly served as Legislative Counsel to IIUSA to achieve RIA’s enactment.

We are ready to put RIA to work for our EB-5 clients.

Connecting with Carolyn Lee PLLC

***