Top 3 Most Important EB-5 Changes under the 2022 EB-5 Reform Act for 2024 EB-5 Investors

Designed to stimulate the economy by attracting foreign capital and creating employment opportunities, the EB5 visa program offers a clear investment immigration pathway for investors and their families to establish roots in the United States.

In 2022, the EB-5 Reform Act was implemented which has provided important incentives for EB-5 investors. This has revived significant interest in the EB-5 program for investors around the world through 2023 and continuing into 2024. 

The Top 3 EB-5 Changes under the 2022 EB-5 Reform Act

While speaking with thousands of clients, several EB-5 changes have majorly impacted investor decision making. 

1. Reserved EB-5 Visa Categories. 

Three new reserved EB-5 visa categories were created under the 2022 EB-5 Reform Act. 

  • Rural EB-5 Visas - 20% of EB-5 Visas Reserved
  • High Unemployed (TEA) EB-5 Visas - 10% of EB-5 Visas Reserved
  • Public Infrastructure Eb-5 Visas - 2% of EB-5 Visas Reserved

As a result, any project that qualifies for one of these three categories as of December 2023 has no EB-5 backlog. This includes China, India, and Vietnam which have historically seen EB-5 backlogs as long as two to ten years.

It should be noted that we ourselves have already filed for many EB-5 investors in 2023 and there is no telling when a backlog will begin for even the reserved EB-5 categories. To determine whether a backlog will be upcoming, EB-5 investors should only rely on the official EB-5 Visa Bulletin provided by USCIS.

2. Concurrent Filing of I-485 Adjustment of Status for EB-5 Investors 

This is just as important as the reserved EB-5 visa categories for EB-5 investors. The 2022 EB-5 Reform Act also enabled concurrent filing of adjustment of status (Form I-485) for EB-5 investors filing their I-526. 

Practically speaking, this means that a new EB-5 investor which applies to a qualified, reserved EB-5 Visa category EB-5 project can file their I-526 and I-485 concurrently allowing an EB-5 investor to stay in the United States throughout the adjudication of their I-526 application

EB-5 investors can also concurrently file their form I-765 to get their EAD card enabling them to find employment and their form I-131 to allow them to travel in and out of the country without abandoning their I-485 application. In essence, EB-5 investors can essentially get all the benefits of a green card upon filing their EB-5 visa application. 

The biggest beneficiaries from this have been applicants who have been in the USA and adjusted from H-1B. This has been instrumental in helping Indian Eb-5 investors and which many face absurd backlogs on EB-2 and EB-3 applications. By filing an EB-5, Indian EB-5 investors can remove the hassle of having to continuously refile their H-1B while facing timeline uncertainty.

3. New EB-5 Minimum Investment Amounts 

While new EB-5 minimum investment amounts increased, this has been a reasonable increase for many EB-5 investors. 

The new EB-5 investment amounts are:

  • Targeted Employment Area (TEA) or Infrastructure Project - $800,000.00
  • All other projects - $1,050,000.00 

The EB5 visa program offers a compelling opportunity for EB-5 investors seeking U.S. residency through investment, contributing to economic growth while securing a pathway to permanent residency and, ultimately, citizenship. 

The 2022 EB-5 Reform Act has had a significant impact for EB-5 investors in 2023 and will be very important for EB-5 investors in 2024. Some final considerations for the 2024 EB-5 Investor looking to immigrate to the United States through the EB-5 program:

  1. As of January 2024, the EB-5 Reserved Set Aside categories will be current for rural, TEA, and public infrastructure projects. This can change at any time
  2. Once a reserved EB-5 visa category is no longer current, an Eb-5 investor cannot concurrently file their form I-485 with their form I-526. 
  3. EB-5 investors looking to adjust status can check with their project to ensure they are qualified in one of the three reserved EB-5 Visa categories is essential to ensure they can adjust immediately. 
  4. EB-5 investors planning to leave the country shortly after filing their I-485, should have an approved I-131 or they will be considered to have abandoned their I-485 application upon exiting the USA.  

If you are an EB-5 investor seeking to file for an EB-5 investment, you should always seek the counsel of an experienced EB-5 investment immigration attorney. The EB-5 visa program is a complex investment process which has multiple components and having an EB-5 investment immigration attorney is essential to having a successful application. SMS Law Firm is the best option when looking for immigration attorney in San Diego and EB5 Visa attorney

The material contained in this alert does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 SMS Law Firm, APC.  All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of SMS Law Firm, APC.  For permission, info@smslawfirm.us

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