USICS’s New EB-5 RIA Implementation Announcement & Listening Session

By Carolyn Lee

On April 29, 2022, USCIS published EB-5 Questions and Answers (Q&A) answering some of the pressing questions on EB-5 Reform and Integrity Act interpretations, including regional center re-designations and investor petitions associated with regional centers, both pre- and post-RIA. Previously, USCIS had posted that it was interpreting RIA to require all regional centers to seek re-designation under an announcement labeled, “USCIS Announces New EB-5 Regional Center Program.

The Q&A, however, raised more questions than answers. However, before getting to that, here are some of the Q&A highlights:

• Regional centers must indeed seek designation anew under RIA.

• Regional centers must do so by filing a new Form I-956, to be published by May 14, 2022.

• The Form I-956 must be approved and a new project application filed before investors may file Forms I-526 with the project.

• Regional Center Investors who filed before June 30, 2021, will continue to be processed regardless of whether their associated regional centers are designated under RIA.

• Pre-sunset regional center investors may establish eligibility by meeting “other applicable requirements.”

The full text of the Q&A is reprised below.

The questions in the main now are:

1. Having decided that an approval of a re-designation request is required even for regional centers in good standing under the prior law, will USCIS have a streamlined process for adjudicating the Form I-956?

The current reported processing times on I-526s and I-829s and for I-924s before being taken down are at 44 to 71 months. The Regional Center program would sunset again before the first I-956 adjudication.

2. Drilling down, will USCIS provide premium processing or guaranteed expedited processing or just plain old reasonable processing (defined in this case as less than 30 days) for I-956s? For the reasons above, the alternative means de facto no “reauthorization” brought by RIA.

It seems clear that USCIS can use feedback beyond the “Listening Sessions” it holds with the public. The Listening Session was essentially a series of one-way monologues from the Agency to the stakeholders. These have their place, but not when faced with the extraordinary task of interpreting 100 pages of new legislation in the most complex area of immigration. Means exist within the bounds of existing law and protocols for the meaningful dialogue astutely called for during the Listening Session. In short, we need EB-5 Dialogue Sessions, or put another way, EB-5 Conversations, and now.

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EB-5 Questions and Answers (updated April 2022)

Regional Center:

How can an entity become a regional center?

Entities seeking to be designated as a regional center are required to file Form I-956, Application for Regional Center Designation. USCIS will be publishing this new form, including the form instructions, with additional information regarding the filing process by May 14, 2022.

Are previously designated regional centers able to maintain their designation without filing a Form I-956, Application for Regional Center Designation?

No. The EB-5 Reform and Integrity Act of 2022 repealed the legacy Regional Center Program. As a result, previously designated regional centers must reapply by filing the new Form I-956, Application for Regional Center Designation.

I currently represent a previously designated regional center seeking to amend my designation or submit my annual statement. Can I file Form I-924 or I-924A now?

No, USCIS will reject all Form I-924 and Form I-924A filings. Since the EB-5 Reform and Integrity Act of 2022 repealed the legacy Regional Center Program and any prior designations, there are no grounds to file amendments or annual certifications.

Immigrant Petition by Alien Entrepreneur (Form I-526):

When can I file a regional center-related I-526?

Individuals seeking status as an immigrant investor whose investment project is associated with a regional center (with an approved Form I-956 after May 14, 2022), may file a Form I-526, Immigrant Petition by Alien Entrepreneur, only after the regional center has submitted a project application and received a receipt number for that application.

Is USCIS processing regional center-related Forms I-526s filed on or before June 30, 2021?

USCIS has resumed processing regional center-related Form I-526, Immigrant Petition by Alien Entrepreneur, filed on or before June 30, 2021, the sunset of the previous regional center program. USCIS will adjudicate those Forms I-526 petitions according to the applicable eligibility requirements at the time such petitions were filed (that is, the eligibility requirements in place prior to the enactment of the new legislation on March 15, 2022).

Can I still establish eligibility based on my pre-enactment Form I-526 petition even though the previously approved regional center associated with my petition is no longer designated?

Yes. While repeal of the prior immigrant investor program requires previously designated regional centers to reapply for designation if they wish to continue their participation, the need to reapply does not impact petitions pending prior to March 15, 2022 associated with those entities; rather the impact is limited to the ability to support new petitions in the future. Despite the previously approved regional center associated with your petition no longer being designated, you may still establish eligibility by demonstrating compliance with other applicable requirements (primarily investment and job creation, including indirect job creation as provided under the former statute).

How is USCIS treating pooled standalone cases?

Pooled standalone cases are not allowed under the EB-5 Reform and Integrity Act of 2022; therefore, USCIS will reject any petition based on a pooled, non-regional center investment filed on or after March 15, 2022. USCIS will adjudicate pooled standalone cases filed before March 15, 2022 based on eligibility requirements at the time such petitions were filed.

Policy:

How can I request that USCIS designate an area as a high unemployment area?

USCIS will review the area claimed as a high unemployment area when adjudicating the project application for regional center filings or the individual’s petition for standalone investments.

A high unemployment area is a census tract, or contiguous census tracts, where the new commercial enterprise is principally doing business, experiencing unemployment of at least 150% the national average. When calculating the weighted unemployment rate, the area may include any census tracts directly adjacent to those where the NCE is principally doing business.

How can I request that USCIS determine whether a specific capital investment project meets the definition of “infrastructure project”?

USCIS will determine if the investment is in a qualified infrastructure project when adjudicating the regional center’s project application.

An infrastructure project is a capital investment project in a filed or approved business plan, which is administered by a governmental entity (such as a federal, state, or local agency or authority) that is the job-creating entity contracting with a regional center or new commercial enterprise to receive capital investment under the Regional Center Program from alien investors or the new commercial enterprise as financing for maintaining, improving, or constructing a public works project.

Will USCIS still apply its further deployment policy and consider further deployment outside of the regional center’s geographic area as disqualifying?

The EB-5 Reform and Integrity Act of 2022 repealed the former regional center statute and previously approved regional centers are no longer designated. The EB-5 Reform and Integrity Act of 2022 also allows for further deployment of capital anywhere in the United States or its territories. Therefore, including for petitions filed pre-enactment, further deployment is not required within the same regional center or within any regional center’s geographic area.

General Implementation:

If I have an additional question regarding implementation of the legislation, how should I reach out to USCIS?

Please email the USCIS Public Engagement office at Public.Engagement@uscis.dhs.gov.