On October 11, 2023 USCIS issued new guidance on changes to the EB-5 program as introduced by the EB-5 Reform and Integrity Act of 2022 (RIA).

Firstly, it clarifies the investment timeframe for EB-5 investors filing Form I-526 or I-526E on or after March 15, 2022. The RIA no longer requires investors to maintain their investment throughout their conditional residency; instead the requisite 2-year timeframe begins on the date Investor makes actual investment into the New Commercial Enterprise (i.e. EB-5 Project), provided job creation criteria are met.

Some Regional Centers have started to change their business model and Subscription Agreements to adapt to the new interpretation, thus shortening the time they keep investors’ funds. However, most Regional Centers contractually oblige an investor to keep their funds invested for an average of 5-years.

The most important impact is realized by investors from China and India (retrogressed countries) which prior to this change would have had to redeploy their funds into another project after said 5-years were up, because they had not yet been assigned an immigrant visa (due to quota restrictions). This tied up their funds for several years. Now they can legally obtain their money back from their project at the expiration of their Subscription Agreement and potentially have a successful outcome provided all other necessary conditions are met (such as job creation).

Secondly, the guidance outlines the treatment of investors associated with terminated regional centers. Before the RIA, regional center terminations were deemed material changes impacting investor eligibility. However, the RIA introduced changes allowing good faith investors linked to terminated regional centers to maintain eligibility. USCIS has issued detailed guidance on the procedural application of this rule, offering an extended deadline for pre-RIA investors to respond to a regional center termination notification until the agency adjudicates their Form I-526 petition. Procedural flexibility, including a 180-day extension for responding to notices of termination, may be utilized. In cases of regional center termination due to administrative noncompliance, USCIS will consider that this will not negatively impact a pre-RIA investor's basic eligibility, so long as the investment and job creation requirements are met.  

These changes bring good news for EB-5 investors, whether they invested before or after the implementation of the RIA.

For more Information about EB-5 Visa investors, visit here https://www.lawmaks.com/blog/new-update-for-eb-5-program