Mar 14, 2022 Update
After many years of uncertainty, Congress has passed a new EB-5 law. President Biden signed the new law on March 11, 2022 (the “Effective Date”), since it is part of the larger law which funds the federal government.
This summary focuses on changes brought by the new law which affect Investors. Changes affecting Regional Centers, developers and other stakeholders will be summarized separately. These changes will begin at the Effective Date and continue to September 30, 2026. We should expect the government will take many months before it publishes regulations and guidance on the new law.
“Grandfathering” Investors who filed their I-526 before the Effective Date remain eligible under the law as it existed before the Effective Date, for both I-526 and I-829 adjudication. This means the new law does not impose any new requirements directly on existing EB-5 investors.
Adjustment of Status. As of the Effective Date any eligible EB-5 investor may file Adjustment of Status. Once an EB-5 visa number become available, an Investor and family who are lawfully present in the US may file for Adjustment of Status while the investor’s I-526 petition is pending (or approved).
Investment Amounts. The new minimum Investment amounts are either $800,000 or $1,050,000. If an investment is not eligible for $800,000, the minimum investment is $1,050,000. Every five years, the minimum Investment amounts will be recalculated to reflect inflation.
Three types of investment will qualify for the $800,000 level:
- Rural Area Targeted Employment Area (TEA). A Rural Area is defined as before: any area NOT within a Metropolitan Statistical Area (“MSA”) or NOT within a city or town having a population of 20,000 or more, based on the most recent census.
- High Unemployment Area TEA. A High Unemployment Area TEA has unemployment of at least 150 percent of the national average. The area must include the census tract or contiguous census tract(s) in which the New Commercial Enterprise (NCE) is principally doing business, and may also include any census tracts directly adjacent to such census tract(s)
- Public Infrastructure Investment. Even if not located in a TEA, the minimum investment of $800,000 is permitted if investor funds go into a privately placed investment in a government entity developing public works. Investment in a publicly available municipal bond will NOT qualify for the $800,000 minimum investment.
Reserved Visas. The three types of investment which qualify at the $800,000 level also qualify for a new visa reservation system. The issuance of EB-5 visas will be “reserved” each year: 20% for rural areas, 10% for high unemployment areas, and 2% for infrastructure projects. It seems a new immigration quota will be created for investors in these categories, allowing for faster approval.
Investor Protection. The new law protects investors in case the RC, NCE, or Job Creating Entity (“JCE”) are terminated or debarred. As long as the investor was otherwise qualified, he or she may associate with replacement entities and make additional investment (including funds from the defunct investment) to meet the investment and job creation requirements without losing priority date or child status protection.
Faster Processing of I-526 and I-829. The new law requires USCIS to figure out how much it would cost so that petitions can be processed within 90 to 240 days. Then, the USCIS must charge the new fees and deliver approval within that timeframe.
The impact of the new law is complex and may change as government agencies issue guidance and regulations. Return to this page for future updates. Please contact us if you have any specific questions.