USCIS provides additional guidance for EB-5 required investment timeframe

Washington: USCIS begun to provide additional guidance on our interpretation of changes to the EB-5 program in the Immigration and Nationality Act (INA) made by the EB-5 Reform and Integrity Act of 2022 (RIA), specifically the required investment timeframe and how we treat investors who are associated with a terminated regional center.

For investors seeking to remove conditions on their permanent resident status under INA 216A based on an EB-5 immigrant visa petition filed on or after enactment of the RIA (post-RIA investors), the RIA removed the requirement that the investor must sustain their investment throughout their conditional residence.

The RIA also modified INA 203(b)(5)(A)(i) by adding new language that the investment required by INA 203(b)(5)(A)(i) must be expected to remain invested for at least two years.

Because of these changes made by the RIA, investors filing petitions for classification after enactment of the RIA no longer need to sustain their investment throughout their conditional residence, which may be many years in the future and dependent on factors outside the investor’s control such as visa availability.

Instead, the INA now requires only that the investment must be expected to remain invested for at least two years, provided job creation requirements have been met.

The RIA added a new provision at INA 203(b)(5)(M) that permits good faith investors associated with terminated regional centers to retain eligibility in certain circumstances. Because the statute does not explicitly specify whether it applies only to post-RIA investors or also to pre-RIA investors, USCIS also providing guidance on how it interpret this new provision for pre-RIA investors upon regional center termination:

  • USCIS interpreted INA 203(b)(5)(M) to apply to pre-RIA investors associated with a terminated regional center. If needed, USCIS may issue a Request for Evidence or Notice of Intent to Deny for the investor to establish continued eligibility.
  • USCIS may use the procedural flexibilities to extend the response deadline of 180 days for notices of continued eligibility.
  • When a regional center is terminated for purely administrative noncompliance, USCIS may determine that the termination would generally not adversely affect a pre-RIA investor’s basic eligibility because their investment and resulting job creation would remain undisturbed.
  • USCIS may choose not to extend applicable response deadlines when a regional center is terminated for substantive reasons that may affect continued eligibility of their associated investors.
Image courtesy of Siam Legal

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