Congress Set to Pass EB-5 Reform and Reauthorize EB-5 Regional Center Program through Sept. 30, 2027
Wednesday, March 9, 2022

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.

 

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