When do the new EB-5 rules become effective?

November 21, 2019.  All new I-526 visa petitions filed on or after November 21, 2019, must satisfy the new requirements set out in the Final Rule.

Will the minimum investment amount go up on November 21, 2019?

Yes.  The minimum investment amounts will increase to US$800,000 for investments in rural areas or high unemployment areas (known as a Targeted Employment Area or “TEA”).  For all other areas, the investment threshold will go up to US$1.05 million.

Are the new EB-5 Regulations retroactive?

No. The Final Rule expressly provides that they do not have retroactive effect.  The new EB-5 Regulations only apply to new I-526 visa petitions filed on or after November 21, 2019.

When will new EB-5 investments become available at the $800,000 threshold?

The minimum investment amounts are now increased to $800,000 from $500,000 for TEA’s and 1,050,000 in non-designated TEA areas.

The implementation of the I-956 will have an impact on new regional center investor I-526 petitions and they may only file an I-526 petition only after the regional center has I-956 approval, submitted a project application and received a receipt number for that application. This new rule does not impact investors who have filed I-526 prior to March 15, 2022 with a regional center even while the regional center goes through the process of re-designation.

We encourage you to do research, get in touch with us to learn more. For legal resources please Donoso and Partners, who we work with closely.

USCIS has resumed processing regional center-related I-526 Immigrant Petitions filed on or before June 30, 2021. USCIS will adjudicate those Forms I-526 petitions according to the applicable eligibility requirements at the time such petitions were filed (that is, the eligibility requirements in place prior to the enactment of the new legislation on March 15, 2022). The need to reapply as a regional center does not impact petitions pending prior to March 15, 2022 associated with those entities.

If I have a pending I-526 EB-5 visa petition, will I have to invest more capital to keep my visa process?

No.  The new EB-5 Regulations do not require EB-5 investors that have already properly filed an I-526 visa petition to invest more capital to maintain their EB-5 visa process after November 21, 2019.  The exception to this statement are the priority date retention rules for second EB-5 visa petitions (see below).

Will the new EB-5 Regulations allow for priority date retention?

Yes. The Final Rule allows EB-5 investors whose I-526 visa petition was approved (“Original EB-5 Petition”) to retain the priority date when submitting a second and subsequent EB-5 petition (“Second EB-5 Petition”).  The rule only applies to approved I-526 petitions – even if the petition was eventually revoked due to a project related issue, regional center related issue or investor issue (so long as it is not fraud or misrepresentation or material error by USCIS).  Priority date retention is not available if the investor eventually obtained Conditional Lawful Permanent Resident status based on the Original EB-5 Petition.

I invested in a New Commercial Enterprise that had a pending I-924 Exemplar. Will USCIS adjudicate that application differently after November 21, 2019?

No.  If you invested in a New Commercial Enterprise (NCE) before November 21, 2019 and properly filed your I-526 visa petition, and the NCE is waiting to receive a decision on an I-924 Exemplar Application from USCIS, the new EB-5 Regulations should not change the rules that USCIS will apply when making a decision on the pending I-924 Exemplar Application.  Similarly, your I-526 visa petition properly filed before November 21, 2019 will be adjudicated by USCIS based on the current rules in force before November 21, 2019.

Will USCIS allow “place-holder” I-526 visa petitions filed before November 21, 2019?

No.  Current USCIS rules and policies require all I-526 visa petitions to be filed with sufficient evidence for USCIS make a decision on the application.  Petitions that are mere placeholders with little or no evidence will likely be denied by USCIS in its efforts to prevent investors from trying to reserve an investment at the current $500,000 investment threshold for TEA areas.

If my current I-526 visa petition is approved, will the new EB-5 Regulations affect me?

No, not likely. The new EB-5 Regulations do not change the rules for I-526 visa petitions that are properly filed before November 21, 2019 and that eventually are approved by USCIS.

Do the new EB-5 Regulations change the number of visas available for the EB-5 program?

No. The Final Rule does not change the rules regarding the number of EB-5 visas or the rules regarding waiting lists.  Nevertheless, the increase in the investment thresholds to $800,000 for TEAs and $1.05 million for other areas are likely to have a two-fold effect on EB-5 visa usage.

EB-5 Visa set-asides have been updated with 32% priority within a fiscal year for specific projects with the following updated breakdown:

  • 20% will be set-aside for rural projects.
  • 10% will be set-aside for high unemployment areas.
  • 2% will be set-aside for infrastructure projects.

How does Grandfathering work as of the EB-5 Reform and Integrity act?

Cases filed prior to the Reform and Integrity Act (RIA) will be adjudicating under the law at the time of filing and are not subject to the new law.  No increased investment or new TEA rules apply to pending grandfathered cases. If the regional center program sunsets in the future, investors will not face a pause in processing.b Cases filed before the new sunset date of September 30, 2026 will be grandfathered to completion regardless of program expiration.

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