The New Eb-5 Reform And Integrity Act

President Biden Signs Into Law The New Eb-5 Reform And Integrity Act

Author: Alena Shautsova

The EB-5 visa is the preferred employment-based visa of the fifth-order that allows for qualified immigrant investors coming into the U.S. to gain a permanent residence permit by investing a substantial amount in a U.S.-based business. The point invested should be able to employ at least ten U.S. citizens. The EB-5 opportunity came into being in 1990 as a result of the Immigration Act of that same year.

Currently, controversies abound on the current status of the EB-5 initiative. Especially, since the U.S. government recently updated the legal requirements of the EB-5 visa. The question yet unanswered is, what are the new requirements of the EB-5 and if they are fully functional.

Old Requirements Of The EB-5 Visa

To be eligible for the EB-5 visa, the applicant who should be a likely investor at the time must meet the required minimum amount for investment in the designated areas and must make sure that his source of finance is legal.

After the above might have been fulfilled and certified by the USCIS, then the investor and his/her spouse and unmarried children under the age of 21(if any) can then procure an EB-5 visa for permanent residence in the U.S.

There are two types of investments that can be done by a potential investor seeking the EB-5 documentation. These are the Targeted Employment Area(TEA) investment and the non-Targeted Employment Area(non-TEA) investment.

Targeted Employment Areas (TEAs) fall into areas with a high rate of unemployment or rural areas situated outside major cities.

By the previous requirements for obtaining the EB-5 visa, potential investors looking to invest in a Targeted Employment Area (TEA) will invest with a minimum of $500,000 while investing in non-Targeted Employment Areas (non-TEAs) is with a minimum of $1,000,000. These in addition to some others were the former major requirements considered for the granting of an EB-5 visa.

Current Provision For EB-5 Visa Application

After several revisions of what would now be called the EB-5 Reform and Integrity Act largely begun under the Trump administration, President Biden has signed into law a new amendment to the Act. On March 15, 2022, President Biden approved H.R. 2471 the "Consolidated Appropriations Act, 2022" as legally binding. The approved Consolidated Appropriations Act included the EB-5 Reform and Integrity Act of 2022.

Major changes to the EB-5 Reform and Integrity Act included:

1. Reauthorization and extension of the Regional Center Program to September 30, 2027.
2. The increasing of the minimum amount of investment for Targeted Employment Areas (TEAs) from $500,000 to $800,000.
3. The increase of the minimum amount of investment for non-Targeted Employment Areas (non-TEAs) from $1,000,000 to $1,050,000. Beginning January 1, 2027 and every five years thereafter, the investment limits will be increased.
4. It is presently the job of the United States Citizenship and Immigration Services(USCIS) to define high unemployment TEAs (not state letters).
5. Grandfathering Protections - maintains eligibility of all pre-enactment investors, as of when they filed their I-526, for both I-526 and I-829 processing.
6. Authorizes Concurrent I-485 Adjustment of Status filings for pending and authorized I-526 Petitions as well submitting 245(k) protections.
7. The creation of visas which are set aside for particular kinds of projects such as infrastructure, high unemployment, and rural development.
8. The installation of new reporting and disclosure requirements by Regional Centers to both USCIS and sponsored investors.
9. The mandatory registration of promoters and overseas agents by USCIS and the collection of report fees from Regional Centers and sponsored investors.
10. The mandatory requirement of Regional Centers to pay an annual “EB-5 Integrity Fund” fee to be used by USCIS to fund investigations and site visits of Regional Center operators, New Commercial Enterprises(NCEs), and Job Creating Entities (JCEs).

The EB-5 Reform and Integrity Act of 2022 made significant and drastic updates to the former provisions of the EB-5 visa. Since these new provisions are considered worthy by legislative officers, it has faced its share of criticism. This criticism is majorly due to the Act's verbosity and lack of clarity. Although there are pointers to potential development, it lacks appropriate guidance in its application.

Hence, the USCIS is yet to fully endorse it or release a statement to its authorization. This has left the issue of its endorsement by the Biden administration open for public scrutiny while awaiting its full effect. Basically how the amended act affects the filing of new I-526 and concurrent I-485 is not fully certain. But according to a recent post on the USCIS website concerning the Adjustment Of Status Filing Charts, EB-5 Regional Center-based petitioners, for nationals of every country except China, seem presently qualified to file for I-485 Adjustment of Status Applications.

It is also worthy of note that with the provision of two distinct effective dates in the new provision, there is a major confusion with their appropriate application.