New USCIS Update: Additional Guidance For EB-5 Investment Timeframe

New USCIS update provides more clarification on how they understand the EB-5 Reform and Integrity Act of 2022 (RIA) amendments to the Immigration and Nationality Act (INA), particularly regarding the required investment period and their handling of investors connected to a regional centre that has been terminated.

For EB-5 investors filing Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Centre Investor, on or after March 15, 2022, as specified in the RIA, this guideline explains the necessary investment timeline.

The RIA eliminated the need that investor maintains their investment throughout their conditional residence for those investors hoping to have conditions on their permanent resident status under INA 216A removed based on an EB-5 immigrant visa petition filed on or after the enactment of the RIA (post-RIA investors).

The RIA also added new language stating that the investment required by INA 203(b)(5)(A)(i) must be expected to remain invested for at least two years, changing INA 203(b)(5)(A)(i), the general requirement for classification to invest or be actively in the process of investing the necessary amount of capital in a new commercial enterprise.

Due to these modifications made by the RIA, investors who file classification petitions after the law’s enactment are no longer required to maintain their investment for the duration of their conditional residence, which could be many years in the future and depend on variables beyond the investor’s control like the availability of visas.

Currently, the INA merely demands that the investment be anticipated to last for a minimum of two years, as long as the standards for job creation are fulfilled.

The start date of the two-year period under INA 203(b)(5)(A)(i) is not clearly stated in the statute; however, USCIS understand it to be the day on which the required amount of qualified investment is made.

Stated differently, the date the investment was contributed to the new business venture and put at risk in compliance with relevant laws, such as being made available to the organization that creates jobs, shall be used.

If an investment was made more than two years prior to the I-526 or I-526E petition being correctly filed, it should still be kept at that time so that eligibility can be properly assessed.

Prior to the RIA’s passage, the closing of a regional centre would have been regarded as a significant alteration to an investor’s eligibility for those who had not yet acquired conditional permanent resident status.

As a result, related investor petitions would have probably been denied or revoked. A new clause at INA 203(b)(5)(M) was inserted by the RIA, allowing good faith investors connected to regional centres that have been terminated to maintain eligibility under specific conditions.

USCIS is also offering assistance on how we interpret this additional provision for pre-RIA investors upon regional centre termination, as the Act is not clear about whether it applies solely to post-RIA investors or also to pre-RIA investors:

The USCIS understand pre-RIA investors connected to a terminated regional centre to be covered by INA 203(b)(5)(M).

USCIS shall prolong the deadline for pre-RIA investors to reply to a regional centre termination notification until the agency decides their Form I-526 petition, instead of rigorously adhering to specific periods under INA 203(b)(5)(M).

In order for the investor to prove their ongoing eligibility, USCIS might need to send them a Request for Evidence or Notice of Intent to Deny.

The 180-day response deadline for notices of ongoing eligibility may be extended by USCIS using the procedural flexibility.

USCIS may conclude that, in most cases, a pre-RIA investor’s basic eligibility would not be negatively impacted by the closure of a regional centre for merely administrative noncompliance because the investor’s investment and the ensuing job creation would not be disrupted.

When a regional centre closes for significant reasons that would impact the connected investors’ ability to continue being eligible, USCIS reserve the right to not extend the relevant response deadlines.

What is the EB-5 Immigrant Investor Program?

EB-5 Immigrant Investor Program is for investors who meet certain requirements can apply for lawful permanent residency (a Green Card), along with their spouses and unmarried children under the age of 21.

Invest the required sum in a US-based business; and Organize to establish or maintain 10 full-time, permanent positions for eligible US workers.

Because of the designation of the employment-based fifth preference visa that recipients of this program are granted, it is also known as EB-5.