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Big Update: EB-5 Visa Backlog | EB-5 Investment Timeframes | US Immigration

November 9th, 2023 at 05:44 am

Big Update: EB-5 Visa Backlog | EB-5 Investment Timeframes | US Immigration

Revised guidelines for EB-5 investment timelines. Recently, USCIS announced the release of revised guidelines about modifications made to the EB-5 Immigrant Investor program. The revised guidance discusses the necessary duration that the invested capital must remain invested in light of the EB-5 Reform and Integrity Act of 2022 (RIA).

It also addresses whether a specific RIA rule protecting investors who made investments in a regional center that was later discontinued applies to pre-RIA investors.

Changes to Investment Time Frame

The amended guidance makes it clear that investments made after the RIA’s passage must only be maintained for two years. This represents a significant departure from the previous regulation. Due to the extended processing timelines for form I-526 applications and backlogs in certain EB-5 categories, the money has to be invested in the EB-5 firm until the conclusion of the first two years of conditional residency.

This meant that for the investor to be eligible, the USCIS regularly demanded that the cash stay in the project for several years. It is made clear by the revised guidelines that post-RIA investors only need to hold their money for a maximum of two years. According to the guidelines, the two-year period starts on the day that the entire amount of the qualifying investment is made to the new commercial enterprise and is subject to all applicable regulations, including being made accessible to the company that creates jobs as needed.

It might be feasible to withdraw the investment after the two years have gone, even if the Investor’s I-526 or I-526 East petition is still pending. This would not put the ongoing EB-5 case in jeopardy. It is significant to remember that this modification just affects the immigration requirements.

When investing in a regional center, an EB-5 investor must still take into account the conditions of the contract, which may include a significantly longer investment duration than the required two years.

Treatment of Pre-RIA Investors Associated with Terminated Regional Centers

The RIA inserted a clause that permits certain investors connected to closed Regional centers to continue to be eligible for EB-5 program conditional permanent residency. The RIA applies to qualifying pre-RIA investors as well, as the new guidance makes clear.

In cases where it is determined that the investment and subsequent job creation are not impactful, the USCIS may nonetheless approve the case even if a regional center is terminated for merely administrative non-compliance. The guideline emphasizes the USCIS’s dedication to carrying out the RIA’s necessary adjustments in a way that best serves investors, all the while upholding program integrity and legal obligations. It gives investors navigating the EB-5 program in the post-RIA environment more clarity and freedom.

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EB-5 Investor Visa Update | USCIS Processing Guidance

To better understand the modifications made to the EB5 program by the EB5 Reform and Integrity Act of 2022 to the Immigration and Nationality Act (INA), USCIS is offering further clarification. In particular, the duration of the needed investment and our handling of investors connected to a Terminated Regional Center

For EB5 investors filing Form I-526 immigrant petition by Standalone investor or Form I-526c immigrant petition by Regional Center investor on or after March 15, 2022, as specified in the RIA, this article provides clarification regarding the necessary investment time range.

The RIA eliminated the requirement that the investor maintain their investment throughout their conditional residence, the general requirement for classification to invest, and the requirement that the investor be actively in the process of investing the necessary amount of capital in a new commercial enterprise. These requirements were important to investors pursuing to remove circumstances on their permanent resident status under INA 216a based on an EB5 immigrant visa petition filed on or after the enactment of the RIA.

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As a result of these RIA modifications, investors who file petitions for classification following RIA enactment are spared from having to maintain their investment for the duration of their conditional residents, which could be many years in the future and depend on variables beyond the investors’ control like the availability of visas.

All the immediate necessary details remain the expectation that the investment will stay in place for at least two years, assuming that the prerequisites for job creation remain satisfied. Nevertheless, the Act is silent on the start of the 2 years under INA 203. The day that the required quantity of qualifying investment is made is when we interpret the commencement date.

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The date the investment was contributed to the new business venture and put at risk in compliance with all relevant regulations, such as being made available to the entity responsible for creating jobs, will be used by USCIS. Generally speaking, the investment should still be kept at the time the I-526 or I-526e petition is correctly filed if it was made more than two years before filing.

For us to properly assess eligibility before the RIA’s enactment. If a regional center is terminated, investors who had not yet secured conditional permanent resident status would have been regarded to have changed their eligibility, which would have likely led to the denial or revocation of related investor petitions.

Further Details

A new provision at INA 203 now established by the RIA, allows good faith investors connected to terminated Regional centers to maintain eligibility under specific conditions. Therefore, due to the statute’s ambiguity about its application to both pre-RIA and post-RIA investors,

Additionally, USCIS is offering guidelines for how pre-RIA investors should understand this new rule. USCIS will extend the pre-RIA investor deadline for responding to a regional center termination notification upon the regional center’s termination. We may send out a request for proof or notice of intent to reject for the investor to show ongoing eligibility until the agency rules on its Form I-526 petition.

The 180-day response deadline for notices of ongoing eligibility may extend by the US using procedural flexibility. We may conclude that, in most cases, a regional center’s termination for simply administrative non-compliance won’t hurt a pre-investor’s basic eligibility.

We reserve the right to refuse to extend any relevant response dates since their investment and the ensuing job creation remain unaffected. Consequently, if a regional center closes for significant reasons, it could impact its associated investors’ eligibility going forward.

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