USCIS PROVIDES GUIDANCE FOR EB-5 TIMEFRAME AND TERMINATED REGIONAL CENTERS
On October 11, 2023, the U.S. Citizenship and Immigration Services (USCIS) provided additional guidance regarding Congressional changes to the EB-5 program made by the EB-5 Reform and Integrity Act of 2022 (RIA), specifically the required investment timeframe and how it treats investors who are associated with a terminated regional center.
Updates on Required Investment Timeframe:
This guidance clarifies the required investment timeframe for EB-5 investors who file Form I-526, Immigrant Petition by Standalone Investor or Form I-526E, Immigrant Petition by Regional Center Investor, on or after March 15, 2022, as outlined in the RIA.
For investors seeking to remove conditions on their permanent resident status 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 the general requirement for classification to invest or be actively in the process of investing the requisite amount of capital in a new commercial enterprise) by adding new language that the investment must be expected to remain invested for at least two years.
Although the statute does not explicitly specify when the two-year period under INA 203(b)(5)(A)(i) begins, USCIS interprets the start date as the date the requisite amount of qualifying investment is made. If invested more than two years before filing the I-526 or I-526E petition, the investment should generally still be maintained at the time the I-526 or I-526E is properly filed so USCIS can appropriately evaluate eligibility.
Guidance on Terminated Regional Centers
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 provided guidance on how it interprets this new provision for pre-RIA investors upon regional center termination:
USCIS interprets INA 203(b)(5)(M) to apply to pre-RIA investors associated with a terminated regional center. Rather than strictly applying certain timeframes under INA 203(b)(5)(M), it will extend the deadline for pre-RIA investors to respond to a regional center termination notification until the agency adjudicates its Form I-526 petition. 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 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 the continued eligibility of its associated investors.
If you have any questions about the EB-5 process, please schedule a consultation today with one of our expert immigration attorneys.
For more information on USCIS’s explanation of changes to the EB-5 program, click here.
