February 6, 2023

Volume XIII, Number 37

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February 06, 2023

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February 03, 2023

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Congress Set to Pass EB-5 Reform and Reauthorize EB-5 Regional Center Program through Sept. 30, 2027

Late last night, Congress released the text of the Omnibus spending bill, which includes the “EB-5 Reform and Integrity Act” at page 2609. With government funding expiring March 11 we anticipate passage of this bill in the next few days.

After nearly 8.5 months of a lapsed EB-5 Regional Center program, Congress has authorized a longer-term reform of the EB-5 program and reauthorized the Regional Center program. See the previous link to blogs about the lapse.

This reauthorization does the following:

  • EB-5 “Regional Center” Program Re-Authorized

    • Through Sept. 30, 2027

  • Targeted Employment Area (TEA) Designations

    • TEA projects qualify for both the lower investment levels and the visa set-asides (see below)

    • Rural Projects

      • In areas outside a Metropolitan Statistical area, or within the outer boundary of any city or town with a population of 20,000 or more. (No change from prior law)

      • Priority processing for rural projects

    • Distressed Urban Area Projects (“High Unemployment Areas”)

      • Codifies the 2019 USCIS regulation (“donut” approach)

      • Project must be located in a census tract – or any “contiguous” census tracts that “touch” the project’s tract – where average unemployment rate for the tracts is 150% of the national average unemployment rate

      • DHS Secretary has the discretion to include a “directly adjacent” tract (to either the “anchor” tract or a “contiguous” tract) to satisfy the requisite 150% high unemployment criteria

    • Infrastructure Projects

      • A “capital investment project” administered by a “governmental entity” that serves as the “job-creating entity” which receives capital from EB-5 investors, and contracts with a regional center.

  • Investment Amounts

    • $800,000 in TEAs

    • $1,050,000 in non-TEAs

    • On Jan. 1, 2027, and every five years thereafter, investment amounts adjust for inflation.

  • Visa set-asides

    • 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

  • Redeployment of Capital

    • DHS to enact regulations that allow the new commercial enterprise to redeploy capital anywhere in the United States to keep the investment “at risk”

  • Job Creation

    • 10 jobs must be created per investment (same as prior law)

    • One job must be a “direct” job; the other nine can be modeled, estimated “indirect” jobs

    • Construction jobs that last less than two years can satisfy 75% of estimated “indirect” jobs

  • Concurrent Filing of I-526 and I-485

    • Investors can concurrently file their I-526 petitions (showing EB-5 compliance and investment) and their I-485 petitions (application for a “conditional” green card, which adjusts status from a “non-immigrant” to a conditional permanent resident if a visa is available.

  • “Grandfathering” Existing Investors

    • If Congress fails to reauthorize regional centers after the Act’s expiration Sept. 30, 2027, DHS shall continue to process petitions filed on or before Sept. 30, 2026.

  • Integrity Measures

    • New measures to prevent fraud and abuse and to provide tools to DHS to prevent national security breaches.

It is also the first time since 2015 that the EB-5 Regional Center program has been authorized for more than just the current appropriations process. The EB-5 industry came together and pushed for comprehensive reforms. Several of those key reforms did not make it into this legislation including much-needed immigrant visa backlog relief.

©2023 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XII, Number 68
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About this Author

Laura Foote Reiff, Greeberg Traurig Law Firm, Washington DC, Northern Virginia, Labor and Employment, Immigration Law Attorney
Shareholder

Laura Foote Reiff Co-Chairs the Business Immigration & Compliance Practice and is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies, as well as related employment compliance and legislative issues.

Laura advises corporations on a variety of compliance-related issues, particularly related to...

703-749-1372
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