Immigration through Investment – The EB-5 Program
The Employment Based 5th Preference category (EB-5) Immigration through Investment program grants non-Americans and their immediate family members (spouse and children under the age of 21) permanent residency in the United States . To apply, an immigrant investor must invest a minimum of $1.05 million in a commercial enterprise and create a minimum of 10 U.S. jobs in the process. But if the investment is made in a specially designated “targeted employment area” (TEA) or in an infrastructure project, then the immigrant investor is required to invest $800,000 and create 10 jobs. The immigrant investor and his/her family are then issued a “conditional green card” to immigrate to the United States. After two years, the conditional status is removed upon a showing that the investment created at least ten full-time permanent jobs for U.S. workers and "unconditional" or permanent green cards are issued. If an individual's investment is made through a Regional Center - an entity so- designated by the U.S. Citizenship and Immigration Services (USCIS) - the immigrant investor may satisfy the job creation requirement through the showing of “indirect,” as well as “direct” jobs.
The U.S. Congress has passed the “EB-5 Reform and Integrity Act of 2022” as part of the overall U.S. Omnibus Spending Bill.
On March 15, 2022, President Biden signed the 2022 U.S. Omnibus Spending Bill that included the “EB-5 Reform and Integrity Act of 2022” which reauthorizes the EB-5 regional center program through September 30, 2027. This is actually the first long-term reauthorization the EB-5 Regional Center Program has received since 2015.
In addition to reauthorizing the EB-5 Regional Center program, the new EB-5 reform bill makes some significant changes to the EB-5 visa program that will primarily impact future EB-5 investors. Most notably, the minimum EB-5 investment amount increased to $1.05M from the previous $1M investments, or $800,000 from the previous $500,000 for Targeted Employment Areas which include rural areas (same definition as before, but now they receive priority in USCIS processing) or high unemployment area (using narrower “bullseye” definition and can be determined only by USCIS and are valid for two years from project request filing, renewable in two-year increments). The $800,000 amount can also be used for “infrastructure projects” in which a government entity contracts for EB-5 financing to develop public works even if not located in a TEA.
This change in the investment amount applies to both regional center and direct EB-5 investments. However, the change does not affect existing investors with already-filed or approved I-526 petitions.
Under the new bill, a specific number of the total 10,000 EB-5 visas that are available each fiscal year are “reserved” for investors in projects in specific areas. Specifically, the bill allocates 20% of total EB-5 visa numbers to investors in rural areas, 10% to investors in high-unemployment areas, and 2% to investors infrastructure projects.
The new EB-5 reform bill also resumed processing of pending I-526 petitions, and adjustment of status applications, and consular processing of immigrant visa application based on approved I-526 petitions.
Very significantly, the new bill also authorizes individuals who are currently in the United States who file an I-526 petition to concurrently file an I-485 application to adjust status to permanent resident as long as an immigrant visa in their category is available. Individuals currently in the U.S. with already filed I-526 petitions that are still pending before USCIS may also file I-485 applications to adjust status based on their pending I-526 petition . This now means means applicants currently in the U.S. on F-1 student visas, in OPT status, on H-1B work visas, L-1A managerial visas, or other non-immigrant visas can apply for permanent residency at the same time that they file their I-526 petition, and concurrently apply for and obtain temporary employment authorization and travel permission to leave the United States while they await approval of their I-526 petition / application to adjust to U.S. permanent resident.
Summary of several key changes made by the EB-5 Reform bill :
- For targeted employment areas (TEAs) or "infrastructure projects," the needed investment amount is $800,000. The investment amount is $1,050,000 for investments in non-TEA areas.
- If the EB-5 program lapses in the future, grandfathering laws require USCIS to continue processing EB-5 petitions as long as they are filed by September 30, 2026.
- The bill allocates 20% of total EB-5 visa numbers to investments in rural areas, 10% to investments in high-unemployment areas, and 2% to infrastructure projects.
- I-526 petitioners in the United States may concurrently file I-485 applications to adjust status to lawful permanent resident.
- In some instances, there are age-out protections for dependent children who have reached the age of majority.
- Gifts are still allowed, and they are not restricted to family members.
- Capital investments, administrative fees, and any fees "connected" with the investment are also subject to source of funds restrictions.
- An Regional Center must file an application for project approval (“project request”), but investors can file I-526 petitions once the required project request is filed.
- If a regional center or new commercial enterprise (NCE) closes, there is a process in place to switch projects.
