Developments in EB-5 Required Investment & Regional Center Program
This is a unique time for the EB-5 Immigrant Investor Program as two major developments have taken place in June 2021. The minimum required investment to apply for the program has changed. Also, the Regional Center program has expired. The most likely scenario is that these are temporary adjustments, however, and will not be in place for the long term.
(1) EB-5 MINIMUM INVESTMENT AMOUNT
A U.S. federal court invalidated the USCIS regulation increasing the minimum required EB-5 investment amount from $500,000 (TEA)/$1,000,000 (non-TEA) to $900,000 (TEA)/$1,800,000 (non-TEA). The court’s ruling also reversed the EB-5 program rules on how to define Targeted Employment Areas (TEAs) back to the original process.
The investment amount will stay at the $500,000 (TEA)/$1,000,000 (non-TEA) level, until there is action by the government to change it. The June 2021 U.S. federal court ruling may be appealed and reversed, or USCIS may pass a new EB-5 regulation to change it, or the U.S. Congress may pass a law to change it. It is unclear at this time, however, how long the investment amount will remain $500,000 (TEA)/$1,000,000 (non-TEA).
(2) EXPIRATION OF EB-5 REGIONAL CENTER PROGRAM
On June 30, 2021, the EB-5 Regional Center Program expired and was not re-authorized by the U.S. Congress. This expiration is relevant only to the Regional Center program, as the Direct EB-5 program is a permanent program and has no expiration (or “sunset”) date.
The generally-accepted expectation is that the EB-5 Regional Center program will be re-authorized. Although it is not a permanent program, it has already gone through the re-authorization process over and over again since the 1990s. It is unclear at this time, however, when the expected re-authorization would come through.
With these two major developments taking place at the same time, there are a few considerations to be made depending upon your personal circumstances. Please see a break-down below of what this may mean for you.
- What does this mean for people considering the EB-5 program?
If you are interested in applying for an EB-5 green card, this means that the only option you have right now is to apply for a Direct EB-5 investment, and your minimum required investment is $500,000 (TEA)/$1,000,000 (non-TEA). USCIS has announced that it will accept only Direct EB-5 I-526 petitions and will reject any I-526 petitions filed through a Regional Center.
As described above, it is unclear how long the rules will remain in place as they stand today. You may need to move as quickly as possible to get your case in under the current investment amount, and you may also need to be prepared to supplement your $500,000/$1,000,000 investment with additional funding if the EB-5 rules change and are applied retro-actively.
- What does this mean for people with pending EB-5 petitions/applications?
If you have already filed an I-526 petition, USCIS will continue to adjudicate only Direct EB-5 I-526 petitions. I-526 petitions filed for the Regional Center program will be held for the time being, until re-authorization has occurred.
If your I-526 petition was already approved and you have filed for Adjustment of Status or an Immigrant Visa, you should only expect adjudication of your case if your I-526 petition was based on a Direct EB-5 investment. USCIS and the Department of State will not be issuing any approvals on Adjustment of Status or Immigrant Visas for Regional Center-based cases until re-authorization has occurred.
If you are a conditional permanent resident and have already filed your I-829 petition, you may expect continued processing of your case regardless of whether you filed with Direct EB-5 or with a Regional Center. USCIS has announced that it will adjudicate all I-829 petitions that have been filed.
For more information about these developments in the EB-5 program, and to see whether EB-5 is a good fit for you, please contact us for a free consultation.
