December 5th, 2023 at 12:26 am
EB-5 Investor Visa: Form I-526E Processing | 5 Things to know about EB-5 Visa
Before 2024, here are five new things to know regarding EB-5 Immigrant Investor Visas. The last month has seen a lot of action in EB-5. The US Department of State provides information about visa processing and US Citizenship and Immigration Services (USCIS). These are five fresh insights regarding EB-5.
Sustainment Period
The EB-5 Reform and Integrity Act (RIA) of 2022 is explained in guidelines released by USCIS. The sustainment period is the RIA for investors who file the new form I-526E after the RIA. Only two years must pass after the whole amount of the qualifying investment is made to the new commercial enterprise and put at risk following all applicable conditions, such as being made available for the work. This is the period that EB-5 investment capital must remain at risk.
Making an entity makes sense. Given that it seems USCIS is no longer requiring investors to maintain their investment for the duration of the conditional residence period, this might have a significant impact on the EB-5 market. Pre-investors’ first two years of conditional residency continue to be the sustainment period.
Some investors may find this information helpful, but the important question that many investors have is when they can get their money back. This is covered by the subscription or contract, not the USCIS guidance, which only affects the Green Card application process.
EB-5 Visa Wastage
The Department of State (DOS) stated in FY 2023 that the overall number of unreserved visa numbers issued in FY 2023 probably above the yearly cap of 9,500, with the majority being issued by foreign embassies and an additional 1,500 used through USCIS adjustment of status applications.
Faster I-526E Processing
For post-reform I-526s, USCIS appears to have distinct adjudication teams that are processing applications more quickly. For investments in certain rural projects, our company has obtained Form I-526E approvals in as little as three months, while multiple regional centers report that USCIS is approving Form I-526s for investments in their high unemployment area projects in approximately twelve to thirteen months.
USCIS made it clear that before deciding on the form I-526E submitted by a single investor in the project, it must first approve the form I-956F project template submitted by the regional center. Before making an investment decision, potential investors are increasingly inquiring about form I-956F adjudications from Regional centers.
Record High EB-5 Visa Numbers in Fiscal Year
There will be more EB-5 visas than ever before 2024 that can be used in FY 2024. The Visa carryover Provisions in the RIA will produce an estimated 20,000 investor green cards. Reserved visas from FY 2022 were not used in FY 2022 or FY 2023 and are now a part of the unreserved FY 2024 due to delayed adjudications; similarly, reserved visas from FY 2023 were not used in FY 2023 and are now a component of the reserved FY 2024.
The EB-5 outlook for FY 2024 is quite promising generally, and we anticipate that the reserved Visa categories will continue to be current in the Visa Bulletin for the next six months, if not the entire year. Several US consulates should work more quickly to arrange interviews and issue immigrant visas throughout the fiscal year, rather than delaying Green Card appointments until the final few months of the year.
Relief for Pre-RIA Investors in Regional Centers Terminated for “Administrative Noncompliance”
Some pre-RIA investors who invested in projects connected to regional centers and no longer want to be recognized under the explicit rules of RIA appear to find some respite from the USCIS’s latest guidelines. USCIS notes that pre-RIA investors may in some circumstances still be eligible for green cards based on indirect jobs created that apply to their petition before the RIA was enacted, notwithstanding the termination of their Associated Regional Center, even though it is still unclear what exactly qualifies as purely administrative non-compliance.
This advice intends to protect immigrant investors in circumstances where USCIS wants to terminate Regional centers that fail to file the appropriate form I-956G or pay the required EB-5 Integrity fee this year. While the practical implementation of this is still unclear, it offers some investors optimism if their Regional centers are shut down.
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 determined that the investment and subsequent job creation exists as not impactful, the USCIS may nonetheless approve the case even if a regional center undergoes termination 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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