USCIS issued a notification on March 1, 2023, that it was implementing the statutorily required annual fee to fund the “EB-5 Integrity Fund.” The “EB-5 Integrity Fund” was authorized in the EB-5 Reform and Integrity Act of 2022 (RIA), and it requires USCIS to collect an annual fee of $10,000 or $20,000 from each designated regional center depending on the number of investors in the preceding fiscal year for that regional center’s new commercial enterprises. As required by law, USCIS published notification of the implementation in the Federal Register on March 2, 2023, which outlines how USCIS will calculate the number of investors in a regional center’s new commercial enterprises for purposes of determining the integrity fund fee owed. At present, it is not clear whether regional centers will owe a fee to the integrity fund for investors who filed petitions with USCIS prior to the passage of the RIA and additional guidance will be required by USCIS, although it appears from its guidance that USCIS intends to collect integrity fund fees calculated to include investors who filed before the RIA’s passage.
Moreover, in the integrity fee notice, USCIS endorses a new interpretation of the “at risk” and “sustainment period” requirements for investors who filed Form I-526 prior to the passage of the RIA and for those who have filed Form I-526 after the passage of the RIA. USCIS states the following (emphasis added):
For example, USCIS considered generally counting only the Forms I-526 that were filed within two years of the applicable period used for determining the EB-5 Integrity Fund fee given the expected two-year minimum timeframe for the investment, or sustainment period, under the 2022 Act. INA section 203(b)(5)(A)(i); 8 U.S.C. 1153(b)(5)(A)(i). However, that would likely be underinclusive given that many investors are actively in the process of investing (i.e. not yet fully invested) when they file their Form I-526 petition as permitted under applicable requirements and, additionally, would not align with the sustainment period for those who filed prior to the 2022 Act, which runs approximately to the point of the Form I-829 filing, regardless of when they filed their Form I-526 or made their investment. For Form I-526 petitions filed after the 2022 Act, USCIS also considered generally counting only Form I-526 petitions whose investments were still within the two-year period of investment expected under INA 203(b)(5)(A)(i); however, manual verification of the time period of investment for each regional center investor, rather than conducting a systems inquiry for total petition filings, would exhaust valuable and significant USCIS resources that the agency believes, in the balance, are better utilized in service of other adjudicatory priorities.
This text appears to confirm that the RIA modified INA 203(b)(5)(A)(i) and changed the previous understanding of the “sustainment period” to be two years following the date of filing the Form I-526. Specifically, the RIA states:
…(i) in which such alien has invested (after November 29, 1990) or, is actively in the process of investing, capital in an amount not less than the amount specified in subparagraph (C) and which is expected to remain invested for not less than 2 years;… See INA 203(b)(5)(A)(i).
USCIS’ statement about the sustainment and “at risk” period in the integrity fee notice confirms that USCIS intends to apply different “at risk” requirements to investors who filed before the RIA and those who filed after the RIA; specifically, a shorter two-year “at risk” period only applies to investors who filed Form I-526/Form I-526Es after the passage of the RIA, which was in March 2022. This would be a significant change in how long an investor has to wait until they can receive a return of their investment.
As USCIS states above, those who filed Form I-526 before the passage of the RIA must sustain their investment until the filing of Form I-829. This also appears to be a new interpretation of the “sustainment period” for those investors. Indeed, as of the writing of this blog post, USCIS’ Policy Manual still states that the following:
The sustainment period is the investor’s 2 years of conditional permanent resident status. USCIS reviews the investor’s evidence to ensure sustainment of the investment for 2 years from the date the investor obtained conditional permanent residence. An investor does not need to maintain his or her investment beyond the sustainment period.
Similar language can also be found elsewhere in the Policy Manual defining the sustainment period as equal to the two-year period of conditional permanent resident status. This definition is different from the definition USCIS endorsed in the EB-5 Integrity Fund notice discussed above because it ends the sustainment at the end of the two-year period of conditional permanent resident status, which is not the same as the date of filing the Form I-829. The filing of the Form I-829 is generally earlier than the end of the two-year period of conditional permanent resident status because such filing can occur anytime within the 90-day period prior to the end of that two-year period. See 8 CFR § 216.6 and INA 216A. However, given that the USCIS Policy Manual now conflicts with USCIS statements in the Federal Register, it is unclear what interpretation will be maintained in the future, and USCIS may have to walk back these statements.
As an overarching matter, the shorter “at risk” period for post-RIA investors will be another frustration for pre-RIA investors, who miss out on the benefits of the RIA. (See an outside blog post for another example). The time difference of two years post-filing Form I-526 and the filing of Form I-829 can be five to 10 years or more, depending on the visa backlog. For instance, as of the March 2023 visa bulletin, the Final Action Date for investors born in mainland China is July 8, 2015. In other words, investors born in mainland China who filed their Form I-526 approximately eight years ago are only now receiving conditional permanent residency and are still approximately 21 months away from filing their Form I-829. If USCIS applied their interpretation of the RIA to pre-RIA investors, that investor born in mainland China who filed their Form I-526 eight years ago would be eligible to receive their funds back.