EB-5 Reform and Reauthorization/Highlights from newly-passed EB-5 Reform and Integrity Act of 2022

After months of waiting, the Congress finally acted on the EB-5 program. Yes, the EB-5 Regional Center (RC) Program is now extended for 5 years through September 30, 2027, the longest term authorization since 2015!
 
Besides that, the EB-5 Reform and Integrity Act has a few more exciting highlights that are both beneficial to both existing and new investors.

• Concurrent Filing of I-526 and I-485

I-485 is an application to adjust status to permanent residence (the green card) and is available to investors (and their dependent family, if any) who are legally present in the U.S. and have visa number available to them.

Previously, I-485 application can only be filed after the investor’s I-526 is approved. The new EB-5 Reform and Integrity Act of 2022 now allows I-485 application to be filed along with or while pending adjudication of the investor’s I-526 petition.
 
The new concurrent filing rule may not be too beneficial to the China-mainland born investors with RC affiliated I-526 petitions as the 2022 EB-5 Act does not affect the current prolong visa wait-line for them. Yet, China-mainland born investors with direct investment may still be able to enjoy the concurrent I-526 and I-485 filing benefit.

• Increase in investment amount 

The Act raises the required investment amount for both RC program and the direct investments.
 
• RC program & Targeted Employment Area (TEA): going from $500,000 to $800,000  
• Non-Targeted Employment Area (non-TEA): going from $1M to $1,05M

Taking into about the mere 250K spread, and the new concurrent filing rule, direct investment may be strategically more beneficial to potential Chinese investors who are now in the U.S. with lawful status. Please contact Law Offices of Sabrina Li for more information.
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• Grandfathering

Existing RC investors are now protected! A “grandfather clause” is included in the new Act to protect existing investors’ eligibility for continuous adjudication and visa allocation notwithstanding subsequent law change or another failed congressional attempt to re-authorize the RC program.

Should Congress fail to re-authorize the EB-5 regional center program after September 30, 2027 (the 2022 Act’s expiration date), DHS shall continue process and adjudicate RC-affiliated petitions filed on or before September 30, 2026.
 
The new EB-5 Reform and Integrity Act of 2022 also covers other important change/addition to the previous EB-5 rules such as redeployment of capital, job creation requirement, reserved visas. For more information on how the 2022 Act will impact the EB-5 industry, please contact Law Offices of Sabrina Li.

1. Redeployment of Capital
   • Allowing New Commercial Enterprise (NCE) to redeploy investment capital anywhere within the U.S. to maintain alien investor’s “at risk” investment
   • Designating DHS to set up regulations on how redeployment can be done
2. Job Creation Requirement
   • Minimum of 10 job creation per investment (same as previous law)
   • 1 job creation must be “direct” job; the other 9 job creation can be modeled, estimated “indirect” jobs
3. Set-aside Visas – certain percentage of the 10,000 EB-5 visas available each year
   • 20% sets aside for rural area projects
   • 10% sets aside for high unemployment area project
   • 2% sets aside for infrastructure projects
   • Unused set-aside visas can be carried over within the same category in the immediately succeeding fiscal year (the “carryover” year)
   • Unused set-aside visas will be made generally available to all qualified investors after the carryover year