EB-5 REGIONAL CENTER PROGRAM IS REAUTHORIZED
On March 9, the House of Representatives has an EB-5 bill that reauthorizes the Regional Center Program and made other significant changes to EB-5 law.
On March 10, the Senate passed the EB-5 Bill, and the EB-5 Reform and Integrity Act of 2022 now becomes effective law after President Joe Biden signed it on March 15, 2022.
A summary of the major changes to the EB-5 program is provided below for your convenience and understanding:
- Preserves eligibility of investors as of the time they filed their I-526, i.e. investors who filed by March 11 will be processed based on old rules.
Adjustment of Status
- Investors and family already legally in the U.S. and eligible for a visa number may concurrently file applications for adjustment of status (avoiding consular visa processing) along with or while awaiting adjudication of the investor’s I-526 petition.
- Effective immediately upon enactment of Act:
- $800,000 in Targeted Employment Areas (TEAs) – rural and high unemployment areas
- $1,050,000 in non-TEAs
- On Jan. 1, 2027, and every five years thereafter, investment amounts adjust for inflation.
- Only 1-to-1 Projects for Direct EB-5.
- Multiple EB-5 investors must do so through regional center.
Regional Center Program Reauthorization.
- Reauthorized through September 2027, beginning 60 days after enactment of act (i.e. beginning in May)
- TEAs are to be determined only by USCIS (and not state or local authority) and are valid for two years from project exemplar filing, renewable in two-year increments.
Reserved EB-5 Visas
- Set-asides are a percentage of the 10,000 EB-5 visas available every year.
- 20% for rural projects
- 10% for distressed urban area projects
- 2% for infrastructure projects
- Unused visas “carry over” in the same category in the immediately following year
- Unused visas in any category made generally available for any project, in the year immediately following the “carry-over” year
Indirect Job Limits
- Can count for no more than 90% of the jobs
- Only 75% of jobs can be from impacts from construction lasting less than two years (and those count only to the extent of the fraction of a two-year period).
- A Regional Center must file an application for project approval with USCIS, but investors can file I-526 petitions once the required project request is filed.
- USCIS to perform a site visit prior to each project, giving at least 24 hours’ notice.
Increased Regional Center Oversight and Regulations
- Endure a USCIS audit every five years
- Demanding applications and annual reports must include broad certifications of securities and other compliance and conditions, including all marketing fees paid.
- Sanctions for misstatements or noncompliance including suspension, fines up to 10%of capital raised, debarment of individuals, or termination
- To support a new “integrity fund,” in addition to all filing fees for application, each Regional Center must pay an annual fee of $20,000, or $10,000 for those with 20 or fewer investors per year, and each Regional Center investor must pay $1,000 with a I-526 petition.
- Investors filing I-829 petitions still may be “actively in the process of creating the employment required,” but the investor must make an additional filing a year later showing that the jobs have been created.
- The legislation directs USCIS to charge what it takes to process various filings between 90 and 240 days, with the shortest times for investors filing I-526 petitions after project requests by RCs.
Innocent Investor Protection.
- Investors who are victims of NCE/JCE/Regional Center termination or debarment because of the NCE/JCE/Regional Center’s fault or fraud have relief available to protect their priority date. They will have to reinvest within 180 days with another entity to protect their priority dates.
- Regional Centers must report any material changes to their projects in their annual reports and disclosures to investors.
- Promoters, including migration agents abroad, must register with USCIS, fully disclose all fees, and follow USCIS guidelines for immigration and securities compliance.