Please join Greenberg Traurig Immigration & Compliance Practice Shareholders Jennifer Hermansky, Kate Kalmykov, and Dillon Colucci for a presentation on the new requirements for annual compliance under the EB-5 Reform and Integrity Act. Panelists will discuss USCIS’s replacement of the annual compliance form I-924A with form I-956G, as well as covering the more fulsome documentary requirements required by the Act.

Wednesday, Nov. 16, 2022
10:30 – 11:30 a.m. EST

Click here to register.

Update: The Judge approved the settlement Thursday, Sept. 1. 

The EB-5 Reform and Integrity Act (RIA) was passed on March 11, 2022. USCIS then posted an interpretation of the legislation that would nullify all 600-plus designated regional centers and require all entities to be re-designated in order to be authorized to file petitions under the new law pursuant to provisions effective May 14, 2022. This interpretation was challenged in the U.S. District Court for the Northern District of California by the EB-5 Investment Coalition (EB5IC) through one of its members. Greenberg Traurig, as counsel for the plaintiff, argued that USCIS’ interpretation ran counter to the plain language of the RIA and violated the Administrative Procedure Act because USCIS failed to properly engage in reasoned decision-making as required by law. On June 24, 2022, the Court agreed and enjoined USCIS from treating as deauthorized previously designated regional centers and declared they must be permitted to operate within the regime created by the RIA. As the Court stated, “[t]his includes processing new I‑526 petitions from immigrants investing through previously authorized regional centers…just as the agency would do for a newly approved regional center.” As a result of this ruling, all previously designated regional centers retain their existing designation and can continue to operate. See previous post, District Court Orders USCIS to Process New I-526 Petitions Throughout Previously Authorized Regional Centers | EB-5 Insights (eb5insights.com)

On Aug. 24, 2022, the parties agreed to a settlement of the case (the court is still reviewing the settlement). See USCIS Settlement Agreement.

The parties included the original plaintiff, Behring Regional Center, an EB-5 Investment Coalition member and plaintiff intervenors, EB5 Capital, CanAm Enterprises, LP, Civitas Capital Management, LLC, Golden Gate Global, Pine State Regional Center, LLC, Invest in the USA (IIUSA). The key terms of the settlement include:

  1. Acknowledgement by USCIS that regional centers validly authorized to operate prior to June 30, 2021, did not lose their designation because of the RIA.
  2. Such regional centers will have to properly file a Form I-956 by Dec. 29, 2022, if not done so already.
  3. Regional centers validly authorized to operate prior to June 30, 2021, do not need to wait for approval of a Form I-956 in order to file and receive adjudications from USCIS on any other forms, such as a Form I-526.
  4. When adjudicating Form I-956s of these regional centers validly authorized to operate prior to June 30, 2021, USCIS will defer to its decision in its prior designation notices when adjudicating certain issues and will allow for attachments from past filings to establish approval.
  5. Form I-956F must be filed by all regional centers (new or regional centers validly authorized to operate prior to June 30, 2021) prior to the filing of an associated Form I-526E (even those with previously approved exemplar Form I-924s) and a Form I-956F should be included with the Form I-526E. Due to delays in the issuance of Form I-956F receipt notices, if a Form I-956F receipt notice is not issued within 10 days of delivery, USCIS will accept a lockbox notice along with a copy of at least the first six pages of the filed Form I-956F (Parts 1-5) for purposes of providing “the receipt number for the regional center’s Form I-956F” in order to facilitate investors’ ability to file a Form I-526E immediately after a regional center files the Form I-956F, or will accept proof of cashed check or credit card charge (along with regional center name, new commercial enterprise name, job creating entity name if available, and approximate Form I-956F filing date) for purposes of providing “the receipt number for the regional center’s Form I-956F.”
  6. USCIS will provide an electronic copy of receipt notices for all Form I-956F applications that have been or are properly filed within 16 weeks and will undertake best efforts to arrange for its lockbox contractor to have the capability to return a Form I-956F receipt notice via prepaid overnight courier (e.g., FedEx or UPS).
  7. For investors who previously filed a Form I-526 or Form I-526E without a Form I-956F but based on a previously approved exemplar Form I-924, such investor may either file a new Form I-526E and a receive a refund of the filing fee or may interfile the I-956F receipt notice. Such investor petitions will not be rejected solely for failure to provide a Form I-526E or include an I-956F receipt number, and those investors can keep their original priority date.
  8. USCIS will deem the new Forms I-956, I-956H, I-956F, I-956G and I-526E to be interim until the conclusion of notice-and-comment rulemaking. USCIS has already published the Form I-526E for notice and comment here. The deadline for comments is Oct. 24, 2022.

Please join Greenberg Traurig Shareholder Kate Kalmykov, James Sozomenou, Metropolitan Commercial Bank, and Connor IrishPRXY CO, for the next lunch-and-learn. The program will discuss:

  • What is the role of an Escrow Bank in EB-5
  • Understanding the duties of an EB-5 Fund Administrator under the RIA
  • Positive effects on a project’s capital raise
  • How to get set up

Location:

The lunch-and-learn program will take place in-person at Greenberg Traurig’s NYC office in One Vanderbilt on Thursday, April 11 from 12 – 2:00 p.m. ET.

RSVP:

To RSVP for the April 11 program, please click here.

This event is part of a series on emerging trends impacting investors and employers. To RSVP to future scheduled Lunch-and-Learn programs, please click here.

On April 9, U.S. Citizenship and Immigration Services introduced audit guidelines for EB-5 regional centers as part of the EB-5 Reform and Integrity Act. Prior to the RIA passage in 2022, USCIS infrequently conducted audits of regional centers, and there was no published guidance, or statutory or regulatory consequences for a regional center’s failure to comply with an audit.

The RIA now requires USCIS to audit regional centers every five years to verify compliance with immigration and securities laws, and the flow of the EB-5 funds into the projects sponsored by the regional center.

Continue reading the full article, published by Law360 May 3, 2024. Reprinted with permission.

In an update to the U.S. Citizenship and Immigration Services (USCIS) fee schedule, USCIS updated the Form I-526 fee table to include the EB-5 Integrity Fund Fee, adding an additional $1,000 in filing fees for Forms I-526.

The EB-5 Reform and Integrity Act of 2022 established the EB-5 Integrity Fund, which is to be financed through the collection of an annual fee paid by and collected from designated regional centers. Beginning Oct. 1, 2022, and in accordance with the Form I-526E, Immigrant Petition by Regional Center Investor filing instructions on the USCIS website, USCIS indicated they would begin collecting a $1,000 Integrity Fund Fee with each new immigrant investor petition filed by a regional center investor for the EB-5 Integrity Fund.

The collection of this fee brings the total government filing fees to $12,160, as the initial general filing fee for Form I-526E was increased to $11,160 as of April 1, 2024.

The first stop on GT’s four-city tour hosted by Kate Kalmykov and EB5AN will take place in Miami on Thursday, April 25 at 10 a.m. ET. The tour will continue in the following cities:

  • GT Los Angeles – Tuesday, April 30, 10:00 a.m. – 2:00 p.m. PT
  • GT New York – Thursday, May 9, 10:00 a.m. – 2:00 p.m. ET
  • GT Atlanta – Tuesday, May 14, 10:00 a.m. – 2:00 p.m. ET

During each session, attorneys and regional center executives will discuss the status of the EB-5 program nearly two years after the EB-5 Reform and Integrity Act of 2022 (RIA). Panelists will share key insights for EB-5 developers and sponsors looking to structure new projects, immigration and securities concerns related to raising EB-5 capital, strategies for fixing “problem” EB-5 projects, and a framework for foreign nationals considering seeking permanent residency through the EB-5 program. Panelists at each event will also discuss current events and information about the EB-5 program, and each session will feature a Q&A for attendees to interact directly with panelists. Click here for more details on each stop of the tour.

Click here to register for any of the seminars.

U.S. Citizenship and Immigration Services (USCIS) has announced new provisions regarding EB-5 regional center audits in accordance with the EB-5 Reform and Integrity Act of 2022. Each designated regional center will be audited at least once every five years, and audits will review documentation required to be maintained by the regional center and the flow of immigrant investor capital into capital investment projects. Audits aim to enhance the integrity of the EB-5 program by verifying information in regional center applications, annual certifications, and associated investor petitions.

During site visits for audits, if a regional center representative refuses to participate, the visit will be canceled and the audit report will be completed using available data, noting the cancellation at the request of the regional center. Regional centers that refuse consent or obstruct audits may have their designation terminated.

However, there are generally no immediate adverse consequences for EB-5 associated entities or petitioners solely based on a negative audit result, except in cases of deliberate noncompliance or obstruction. The findings may be used to evaluate a regional center’s eligibility to remain designated and compliance with applicable requirements.

Starting April 23, 2024, audits will adhere to Generally Accepted Government Auditing Standards to ensure uniformity. USCIS launched a new EB-5 Regional Center Audits webpage to provide information on the auditing process.

Please join GT Shareholder Kate Kalmykov and EB5AN for a four-city tour in the following cities:

  • GT Miami – Thursday, April 25, 10:00 a.m. – 2:00 p.m. ET
  • GT Los Angeles – Tuesday, April 30, 10:00 a.m. – 2:00 p.m. PT
  • GT New York – Thursday, May 9, 10:00 a.m. – 2:00 p.m. ET
  • GT Atlanta – Tuesday, May 14, 10:00 a.m. – 2:00 p.m. ET

During each session, attorneys and regional center executives will discuss the status of the EB-5 program nearly two years after the EB-5 Reform and Integrity Act of 2022 (RIA). Panelists will share key insights for EB-5 developers and sponsors looking to structure new projects, immigration and securities concerns related to raising EB-5 capital, strategies for fixing “problem” EB-5 projects, and a framework for foreign nationals considering seeking permanent residency through the EB-5 program. Panelists at each event will also discuss current events and information about the EB-5 program, and each session will feature a Q&A for attendees to interact directly with panelists. Click here for more details on each stop of the tour.

Click here to register for any of the seminars.

On March 8, 2024, the U.S. Department of State (DOS) published the April 2024 Visa Bulletin. The April 2024 Visa Bulletin reflects no advances in final action dates for India and China. Specifically, the priority dates are as follows:

  • EB-5 Unreserved categories (Pre-RIA):  C5, T5, I5 and R5 (cases filed prior to the EB-5 Reform and Integrity Act of 2022 enacted on March 15, 2022):
    • China: remains December 15, 2015;
    • India: remains December 1, 2020; and
    • All Other Countries, including Mexico and Philippines remain current.
  • EB-5 Rural, High Unemployment, and Infrastructure remain current for all countries.

As a background, the DOS Visa Bulletin summarizes the availability of immigrant numbers and releases Dates for Filing Applications and Final Action Dates charts monthly. U.S. Citizenship and Immigration Services (USCIS) confirms which chart applicants must use for purposes of filing their Adjustment of Status Application. For April 2024, USCIS confirmed that all employment-based preference categories must use the Final Action Dates chart.

The chart below published in the April 2024 Visa Bulletin shows the final action dates for the EB-5 employment-based cases. The priority date is the date of filing of Form I-526 and final action date noted as “C” indicates that the priority date is current, which means the immigrant visa number is available immediately. Individuals with a priority date that is before the published priority date and with the priority date indicated as “current” may file an Adjustment of Status application.

EB-5 Update Graph

On October 11, 2023, United States Citizenship and Immigration Services (USCIS) updated its policy on the minimum investment period for EB-5 visa applicants. This update seeks to clarify how USCIS interprets changes made by the EB-5 Reform and Integrity Act of 2022 (RIA).

The RIA stated that an investment is expected to remain invested for not less than two years, but does not specify when the two years start. The new guidance published on the USCIS website states that this two-year period begins when investor funds are deployed to the job-creating entity (“JCE”). As long as 10 jobs have been created by an EB-5 investor’s investment, he or she can be repaid after two years and remain eligible for a U.S. Green Card. This is a significant change to the “at-risk” requirement for EB-5 investors.

Click here to read the full EB5AN article, co-authored by GT Shareholder Kate Kalmykov.