On April 25, 2023, U.S. Citizenship and Immigration Services (USCIS) hosted a stakeholder engagement webinar regarding the Immigrant Investor Program (EB-5), during which they discussed regulations being drafted to comply with the EB-5 Reform and Integrity Act (RIA). USCIS planned three discussion topics for the call, including the “winding up” of regional centers no longer operating under the RIA, updates to the “at risk” requirements for investors who filed Form I-526E Petitions after the RIA passage, and Form I-956K applications for migration agent registrations. At the outset of the stakeholder engagement, however, USCIS stated they were not prepared to discuss the winding up of regional centers or the new “at risk” requirements. Instead, the call only focused on clarifications of Form I-956K, Registration for Direct and Third-Party Promoters, and other EB-5 related issues.

The Form I-956K was published in response to the RIA requiring all direct and third-party promoters to register with USCIS. On the stakeholder call, USCIS clarified the following for I-956K completion:

  • Who must file I-956K? The person or entity that entered into the written agreement with the new commercial enterprise or regional center to market the project must file the form. In addition, certain employees of the third-party promoter or migration agent also must complete the form and file it with USCIS:
    • Executives or officers, or those who are actively promoting the EB-5 Program, should file Form I-956K. Based on this guidance, marketing staff at migration agents may need to complete this form and file it with USCIS.
    • Personnel not involved in the sale of EB-5, such as document processing specialists, are not required to file Form I-956K.
  • USCIS also stated on the call that if any agent commits fraud or material misrepresentation on the I-956K, USCIS can deny associated I-526E Petitions.
  • Filing of the I-956K is based on the promotion of the project; if the project is no longer being promoted because it was sold to investors who filed before the passage of the RIA (even if payments to agents are ongoing), the migration agents do not need to register on the basis of those older projects.
  • USCIS will publish lists of agents and promoters registered through I-956K on their website in the future.

USCIS also stated on the call that an EB-5 investor’s capital must be at risk and remain invested during the two-year period of conditional residences for those investors who filed I-526 Petitions before the passage of the RIA. This requirement did not change for investors who filed prior to March 15, 2022. USCIS did not comment on the new “at risk” requirements for investors who filed Form I-526E Petitions after the passage of the RIA.

USCIS also made the following general comments:

  • If USCIS terminates a regional center, they will notify all investors with a pending I-526/I-526E.
  • All regional centers must pay the Integrity Fund fee regardless of when they are designated.
  • USCIS does not encourage the submission of project documents along with I-526E Petitions, as the complete project documents were already included in the Form I-956F Application.
  • USCIS is taking steps to transition to electronic submission of Form I-526E and Form I-526.

USCIS did not discuss IPO operations, adjudication trends, or processing times during this call.

On Tuesday, April 25, 2023, U.S. Citizenship and Immigration Services (USCIS) will host a stakeholder engagement webinar regarding the Immigrant Investor Program (EB-5). The webinar, scheduled for 1:30 – 3:00 PM EDT, will provide a platform for USCIS to share pertinent information (e.g., adjudication trends, recent issues, and policy updates) with external EB-5 stakeholders. Moreover, the webinar will also allow stakeholders to provide feedback on USCIS’ policies related to the EB-5 Immigrant Investor Program.

Click here to register for the event

On May 17, 2019, EB-5 Industry stakeholder groups, led by the EB-5 Investment Coalition, U.S. Chamber of Commerce, The Real Estate Roundtable, IIUSA, Rural Alliance, Real Estate Board of New York, AILA, among others, submitted a joint letter to Senate and House Judiciary Committees leadership in support of principle reforms and reauthorization of the EB-5 Regional Center Program, which is set to expire on September 30, 2019.

Proposed reforms include-

  • A six-year reauthorization of the EB-5 Regional Center Program.
  • Enhanced integrity measures to ensure national security and fraud deterrence, such as conducting criminal background checks on individuals involved in regional centers, strengthening the regional center compliance measures, and increasing scrutiny of around immigrant issues involving fraud, misrepresentation or national security concerns.
  • Propose new TEA definition. In particular, with respect to the Urban Distressed Area Definition, the letter suggests limiting the TEAs to a single-census tract that is designated by the U.S. Treasury Department as a “Qualified Opportunity Zone” as per the Tax Cuts and Jobs Act.
  • Set aside 30% of the annual visa allotment each year for investors in TEA projects, which is split evenly between Rural and Urban Distressed communities (i.e. 15% of visas for Rural TEAs and 15% visas for Urban TEAs).
  • Propose that family members do not count against the annual EB-5 visa cap.

For details on the list of reforms proposed in this letter, please visit here.   We will closely monitor the progress of the reforms proposed and will provide updates as they become available.

On March 3, 2017, the USCIS Immigrant Investor Program Office (IPO) held an EB-5 Stakeholder Engagement in which several important updates to the program were provided.

“Unofficial” Statistics for Fiscal Year 2017

From October to December 2016, USCIS saw a surge in petition filings, likely due to an upcoming sunset in the EB-5 regional center program as well as an increase in USCIS filing fees that took effect on Dec. 23, 2016. Specifically, there were 4,395 I-526 petitions filed; 184 I-924 applications filed; and 752 I-829 petitions filed. During this time, USCIS adjudicated 3,583 I-526 petitions (a 120 percent increase), 88 I-924 applications and 112 I-829 petitions. IPO noted that they are currently receiving petitions and applications at a rate faster than they can adjudicate, but hope that this will change with increased hiring and improved efficiency of processes.

Processing Times

USCIS is authorized to hire up to 247 employees over the fiscal year 2017, which will hopefully have a positive effect on improving processing times. IPO also hopes that the creation of a dedicated I-829 adjudication division will increase output on adjudications of all relevant applications and petitions in the EB-5 category.

In order to improve efficiency of process, the IPO also provided a list of ten filing recommendations to the Stakeholders:

  1. Identify dual filings in the cover letter for filings for a project submitted to USCIS on both an I-924 application and an I-526 petition.
  2. I-924 applications do not need to include organizational or transactional documents unless associated with an Exemplar I-526 petition.
  3. If submitting an interfiling with updated documents, highlight the changes.
  4. Do not submit bound petitions or applications to USCIS and do not submit double-sided pages.
  5. Submit a cover letter with the I-526 petition that clearly notes whether it is a regional center or direct investment, and include a summary of the evidence provided.
  6. Submit a table of contents or index with each filing and include corresponding tabs for each piece of evidence.
  7. Provide page numbers for each document.
  8. Submit clear and legible copies of the evidence provided.
  9. Provide complete English translations for all foreign language documents submitted.
  10. Notify USCIS immediately should the applicant or petitioner choose to withdraw the case.

Dedicated I-829 Adjudication Division

In October 2016, the IPO created a division of adjudicators and economists who will focus solely on the adjudication and customer service-related inquiries on Form I-829 Petitions by Entrepreneurs to Remove Conditions on Permanent Resident Status. The I-829 division has 3 teams with 8 adjudicators and economists on each team; a senior member of each team will be tasked with interviewing select I-829 petitioners and most interviews will be conducted remotely. USCIS hopes that the creation of a dedicated I-829 division will speed up the processing times for I-829 adjudications going forward.

Compliance Measures

The IPO is continuing to grow its compliance unit, which currently consists of 3 separate branches, to ensure that regional centers and non-regional center new commercial enterprises with pooled EB-5 investments comply with the applicable laws and policies. One branch will focus on the review of Form I-924A applications through which regional centers demonstrate their continued eligibility for regional center designation. Another branch will be responsible for handling actions such as Notices of Intent to Terminate and Notices of Terminations for regional centers. The third branch will oversee regional center audits, the first of which will be conducted next month.

In a further effort to enhance the integrity of the EB-5 program, the IPO will continue to conduct site visits by its 13 site inspectors, who received comprehensive training on the EB-5 program. Over the fiscal year 2017, the IPO anticipates that it will conduct approximately 250 site visits to both new commercial enterprises (NCE) and job creating entities (JCE). IPO reiterated that there typically is no advance notice for site visits. Rather, the site inspector will visit the premises on a fact-finding mission to evaluate whether the NCE or JCE is operating as expected and will assess the findings of a site visit in the context of the petitioner’s filings with USCIS

Commitment to Transparency

In addition to the updated list of terminated regional centers on the USCIS IPO website, the IPO will soon begin to publish regional center termination notices so that Stakeholders can easily access and review termination notices without making a FOIA request. Termination notices will be published in a USCIS electronic reading room (further details will be provided when the site goes live). IPO feels it is important to publish regional center termination notices so that investors and the general public can better understand why a particular regional center was terminated and know the types of activities that will lead to regional center termination.

Additionally, IPO will soon begin publishing approval and denial statistics for each active regional center.

Policy Change Regarding Regional Center Geographic Area Expansion

On Nov. 30, 2016, USCIS published Part G of its Policy Memo, which superseded the guidance found in the May 30, 2013, Policy Memo with regard to the expansion of the geographic scope of a regional center. Per the May 2013 Policy Memo, a regional center could file an amended I-924 application requesting an expansion of the regional center’s geographic scope, and could concurrently file I-526 petitions relying on the proposed expanded geography during the pendency of the I-924 amendment application. However, with the new Form I-924 which is effective as of Dec. 23, 2016, this is no longer the case.

In what was unquestionably the most controversial update from this Stakeholder Engagement, IPO announced that it would continue to adjudicate all I-526 petitions filed before Dec. 23, 2016 based on the guidance from the May 2013 Policy Memo. However, for all I-526 petitions filed on or after Dec. 23, 2016, the current guidance from the new Policy Memo must be followed: I-526 petitions based on investment in a geographic area not previously approved will be deniable due to ineligibility at the time of filing. In other words, as of Dec. 23, 2016, an I-924 amendment application to expand the geographic scope of a regional center must be approved before investors can file an I-526 petition based on that expanded geographic area. This announcement has serious implications for pending petitions that were filed in reliance on the prior policy and Stakeholders were vigilant in their requests for IPO to reconsider this unexpected change in policy.

Source of Funds Questions

Several questions were asked by Stakeholders regarding source of funds and path of funds issues for I-526 petitions, including inquiries regarding the use of bitcoin and other virtual currencies as the source of funds as well as investments made from joint bank accounts owned by the investor and a family member. As expected, IPO reiterated that any EB-5 investment must meet the relevant regulatory and statutory requirements (i.e., the petition must demonstrate that the funds invested were acquired directly and indirectly by lawful means and that the investor owned and controlled the funds invested). Additionally, IPO confirmed that there is no statutory or regulatory prohibition against minor petitioners, as long as the I-526 petition demonstrates the investor’s ability to contract under the relevant law.

The USCIS Immigrant Investor Program Office (IPO) held its first stakeholder engagement of 2016 on Feb. 3. Primarily speaking for USCIS were Nicholas Colucci, Chief of the IPO, Julia Harrison, Deputy Chief of the IPO, and Laurie McKenzie, the new Division Chief of Policy and Performance.

Processing Times and Backlog Reduction Issues

As has been the case of the past 2 years, the IPO continues to expand its staffing. Staff levels currently stand at 113 and are expected to be increased to 171 by the end of the fiscal year. This is being done with the goal of reducing case processing times to under 6 months.

However, as of Jan. 26, 2016, the preliminary processing times reported by Mr. Colucci were 15.5 months for I-526 Petitions, 7.9 months for I-924 Applications, and 15.7 months for I-829 Petitions. These are expected to increase as the IPO currently has 21,790 pending I-526 Petitions, 902 pending I-924 Applications, and 4,314 pending I-829 Petitions. If each I-526 Petition represents a $500,000 investment, that would equate to approximately $10.895 billion worth of capital potentially waiting to be deployed in the U.S. Additionally, even assuming only 90 percent of the I-526 Petitions will be successful in creating 10 U.S. jobs, 19,611 (90 percent of 21,790) I-526 Petitions equates to approximately 196,110 U.S. jobs potentially held in the balance as the IPO works through this backlog.

Mr. Colucci expounded on the recent rise in processing times being attributed to the incredible volume of I-526 Petitions filed prior to Sept. 30, 2015 and Dec. 11, 2015, as well as the IPO’s desire to adjudicate the oldest pending cases. Mr. Colucci also discussed the fact that senior adjudicators spent time training many junior individuals to handle complex cases so that processing times could decrease in the future.

Regional Center Compliance and Other Issues

With respect to regional center matters, Mr. Colucci expanded on the compliance division he previously announced to review Form I-924As, the annual compliance filing for regional centers. He also reported that seven (7) notices of intent to terminate for failure to promote economic growth have been issued to regional centers. It appears most of these likely dealt with fraud allegations or other impermissible uses of funds (i.e., spending EB-5 funds on recruiting trips to China, commission payments to agents, etc.). However, the majority of terminations are still for those regional centers who simply fail to file.

Mr. Colucci also reported that 25 regional centers had changed their names at the request of USCIS and 18 had removed the Department of Homeland Security seal from their logos or marketing materials. In order to ease this process, Mr. Colucci stated that the USCIS website, which lists regional centers, now includes ID numbers and former names. Unfortunately, this information is not yet listed in the HTML list but in a separate PDF link accessible on that page.

Mr. Colucci also noted that USCIS was expanding its site visit program where Fraud Detection and National Security offices would make unannounced visits to sites of projects or addresses of the new commercial enterprise or job creating enterprise. He also stated that the IPO is developing an audit program for auditing a regional center’s records. This audit program could include site visits to a regional center’s designated address for auditing purposes.

Ms. Harrison provided helpful guidance that if a regional center is terminated, an EB-5 investor in conditional permanent residency will not have his or her conditional permanent residency terminated or revoked. The EB-5 investor will still have the opportunity to apply for removal of conditions. However, when questioned about whether this would apply to someone with a pending I-526 Petition, or someone with an approved I-526 Petition who had not yet entered the U.S., the IPO deflected.

Lastly, despite multiple callers requesting this information, USCIS reiterated that it has no capacity or plans to break out processing times for regional center applications by exemplar, hypothetical or actual.

I-829 Petition Issues

Mr. Colucci stated that they would begin to issue interview notices for I-829 Petitions. This is something that traditionally has never happened. When asked in the question and answer session if regional centers would have standing to attend such interviews, the IPO responded that they do anticipate allowing attorneys and regional center representatives attend such interviews if the petitioner so chooses. It remains to be seen how effective this will be at addressing project specific issues with EB-5 investors. For example, this is in contrast to the ability of a regional center applicant filing an I-924 application to request a hearing or in-person review of the application during or after the adjudication process.

USCIS also went over the process for denial of an I-829 Petition. If USCIS has a record that the person is in the country, USCIS will issue a Notice to Appear before an immigration judge to begin removal proceedings for that person.

New Division of Policy and Performance

Laurie McKenzie was introduced as the head of a new division which is focusing on policy and performance of the IPO. To that end, she discussed that her division was in charge of considering comments and revisions to the August 2015 draft memorandum. She is also going to be reviewing all the forms, including the Form I-526, Form I-924 and Form I-924A, for potential updates. Lastly, she noted that USCIS and the Department of State have prepared guidance in the event the EB-5 Program sunsets, but that it will not be issued unless sunset occurs.

Source of Funds Issues – Authenticated Documents and Private Currency Exchanges

Ms. Harrison responded with some general answers to popular submitted questions, mostly dealing with source of funds. She reiterated that a private currency exchange or exchange of funds is permissible but that USCIS may require evidence to validate that 3 party’s source of funds for the exchange of funds.  Ms. Harrison also stated that USCIS may request authenticated documents if it receives documents which it believes are fraudulent. However, there is no requirement to submit authenticated documents unless USCIS requests them explicitly.

Odds and Ends

Of particular note was that USCIS was coordinating with the SEC regarding guidance on the reinvestment of capital, which may implicate the Investment Advisers Act of 1940, which governs Registered Investment Advisers. Registered Investment Advisers are the individuals or firms who provide advice on investments to clients.

Requests were made for USCIS to publish Form I-924A data which were taken under consideration, as was the suggestion that it be publicly available to the regional centers that receive Notices of Intent to Terminate. Mr. Colucci also stated that he expected the Commerce Department to issue its report on the EB-5 Program, but not before the end of February. The next stakeholder engagement is preliminarily planned for April 25, 2016, and it will include an in-person component.

The passage of the EB-5 Reform and Integrity Act (RIA) in 2022 resulted in the most significant changes to the EB-5 investor immigrant visa program since its establishment in 1990. Among the most notable changes implemented through the RIA was the creation of new “set aside” visa categories for EB-5 investors.  These set-aside categories allocate a certain amount of the 10,000 EB-5 immigrant visas available each year to investments in certain areas or projects, which include:

  • 20% reserved for qualified immigrants who invest in a rural area;
  • 10% reserved for qualified immigrants who invest in a ‘targeted employment area’ (TEA), which meets the requirements that apply to areas of high unemployment (unemployment rate of at least 150% of the U.S. national average); and
  • 2% reserved for qualified immigrants who invest in infrastructure projects.1

Additionally, the RIA allows for the concurrent filing of the investor immigrant visa petition on Form I-526E and adjustment of status (AOS) filing on Form I-485 for those present in the U.S.2 While certain types of EB-5 investments filed prior to the passage of the RIA remain subject to visa bulletin backlogs, which particularly impact petitioners and dependent family members born in countries with the highest demand for immigrant visas (e.g. mainland China and India), the Visa Bulletin has not yet announced a visa backlog for any of the set aside categories established by the RIA.

With the establishment of the set-aside categories, the availability of EB-5 immigrant visas is now subject to multiple factors, in addition to country of birth, under the Department of State’s Visa Bulletin, which dictates an applicant’s ability to apply for an immigrant visa or concurrent AOS (if in the U.S.) based on per-country limitations released monthly by the Department of State (DOS).3 As the visa bulletin is based on approved visa petitions and the petitioners’ countries of birth (as opposed to petitions filed with the U.S. Citizenship and Immigration Services (USCIS) and currently in process), investors understandably are faced with a level of uncertainty when strategizing the timing of their investments and associated petition filings. This is due to the uncertain nature of the continued availability of immigrant visas, which can retrogress with little notice based on the DOS’ contemporaneous issuance of immigrant visas under the EB-5 program. This post will outline data and strategies available to investors to clarify questions related to potential changes to the visa bulletin that may impact EB-5 immigrant visa availability in the coming months. As the progression of the Visa Bulletin is subject to internal data shared between USCIS and the DOS, as well as the DOS’ internal visa issuance metrics, some level of obscurity and uncertainty should be accounted for when planning for immigrant visa petition filing, but the below is meant to help address and account for these inherent uncertainties.

Background on the Visa Bulletin

In connection with the U.S. government’s policy imperative to encourage a diverse pool of immigrants to the U.S., family- and employment-based immigrant visas are subject to a specific allocation of available visas every federal fiscal year. A total of approximately 140,000 immigrant visas are available every fiscal year for employment-based immigrant visas, including the EB-1, EB-2, EB-3, EB-4, and EB-5 immigrant visa categories. Of the total of 140,000 immigrant visas available annually, approximately 10,000 are allocated to the EB-5 investor visa program, which are also subject to the below per-country visa quotas.

To that end, no one country (based on the applicant’s country of birth) can be allocated more than approximately 7.1% of all available immigrant visas.4 Importantly, the DOS recently revised its interpretation of the statutory language on the 7.1% per country limit to clarify that it applies in any preference only if a country’s use of visas exceeds 7.1% of all employment-based preferences together.5 For example, the 7.1% per country limit for Vietnam will only start in the EB-5 category if Vietnam were to reach the 7.1% limit for the overall 140,000 employment-based visas available.  In the past, investors born in Vietnam and Taiwan also have been high users of EB-5 visas; however, with this new interpretation by DOS, they will likely never be subject to a per-country limitation for EB-5 again given that these countries generally have never reached 7.1% of the overall 140,000 employment-based immigrant visas.  Thus, it is likely that these countries will not be subject to the per-country limitation again.

The above only tells part of the story on immigrant visa allocation. This is because in addition to the total of 140,000 employment-based immigrant visas allocated yearly to all countries, unused visa numbers from prior fiscal years (i.e. immigrant visas that are available to those born in under-subscribed countries, but not utilized), roll over for use by applicants of over-subscribed countries according to priority date and availability within the immigrant visa preference category.6 Moreover, unused family-based immigrant visas may also be utilized to address excess demand in employment-based categories.7 While the specific number of unused immigrant visas varies considerably year to year, there tends be some available unused family-based visa numbers from under-subscribed categories each federal fiscal year based on the most recent data made available by USCIS and DOS.8 Additionally, depending on worldwide applicant demand, including self-selection for the unreserved general pool of visas among applicants that have the option, unused immigrant visas from set-aside categories created post-RIA implementation may remain available to qualifying investors from traditionally oversubscribed countries, like China and India.

EB-5 Investor Immigrant Program Data

With the dynamic nature of the immigrant visa allocation process in mind, there is no simple, readily available formula that can help predict the numbers of EB-5 immigrant visas that may be available in a given fiscal year, nor one that can precisely predict how soon retrogression may impact the EB-5 program, particularly in connection with I-526E petitions filed by investors born in traditionally high-demand countries, like China and India. This process is made difficult because USCIS and the Immigrant Investor Program Office (IPO) have not released important statistics to the public that would allow investors to accurately predict how long of a backlog may form in the various set-aside categories.  However, we do have some data. To solve for the lack of government-released data, stakeholders have filed Freedom of Information Act (FOIA) requests that provide more nuanced data on the government’s current processing volumes.  Notably, recent data disclosures made available through FOIA requests found a significant increase in demand for the rural set-aside category, but demand remains “below the needed level to absorb the near-term annual visa supply.” The data released also showed that demand for high unemployment TEA set-aside continued to increase through the end of 2023, which may result in a backlog for that specific set-aside category.9 As expected, demand remains particularly high for immigrant applicants born in mainland China; the below chart published in connection with the data disclosed pursuant to FOIA provides further insight on the processing volumes:

Total number of I-526/I-526E filed from April 1, 2022,to November 2023, by TEA category and country of chargeability (latest stats as per AIIA FOIA data)10

ChinaIndiaTaiwanRest of WorldTotalTotal %
Rural767174181341,09332%
High unemployment9763752096252,18563%
Infrastructure0%
Multiple TEA categories735160.5%
Not TEA26216971504%
Total1,7765732338613,444100%
Total %52%17%7%25%100%

While the data above is subject to change and specifically reflects government filings through November 2023, and spanning multiple federal fiscal years (2022-23), it showed that about two times as many high unemployment set-aside I-526E Petitions were filed as compared to rural area set-aside I-526E Petitions.  However, in June 2024, USCIS also released their January to March 2024 form data, which revealed that an additional 1,810 I-526E Petitions had been filed with USCIS over that three-month period, leaving 3,672 I-526E Petitions pending as of March 31, 2024.11 

Importantly, the quarterly USCIS data shows a huge number of new I-526E Petitions were filed during Q2 of 2024.  Half of all I-526E Petitions pending as of the date of this blog were filed just in Q2 of 2024.  USCIS has not released any statistics to show the breakdown of I-526E Petitions filed in the high unemployment or rural area set aside categories.  Anecdotal evidence from stakeholders and projects seems to show a strong uptick in the demand for rural area projects, and it is possible that many of these new I-526E Petitions were for rural area set-aside visa numbers.  More data from USCIS will be required on this point to give investors a more accurate picture on visa wait times in both rural area and high unemployment set aside projects.

Moreover, the USCIS Q2 2024 data shows that the agency only completed the review of 356 I-526E Petitions this fiscal year.  The statistics do not break down completions by approvals or denials.  Given the small number of case completions during this fiscal year, no visa retrogression has been announced in the Visa Bulletin because an insufficient number of I-526E Petitions have been approved to necessitate announcement of retrogression for any country.

In fact, at a recent conference, the DOS indicated that there is a record amount of EB-5 visas available for this year and predicted again next year.  Specifically, DOS is predicting that there are more than 14,000 unreserved EB-5 visas and more than 8,000 set aside visas available in FY 2024, and DOS is predicting that there will be more than 11,000 unreserved EB-5 visas and more than 6,800 set aside visas available in FY 2025.  Together, that is more than 14,800 set aside visas over this fiscal year and next, split between rural and high unemployment according to their percentages.  This would mean there are approximately 9,800 rural visas and 4,900 high unemployment EB-5 visas available over this fiscal year and next, with additional high numbers remaining available in the unreserved EB-5 category.  Even assuming that each Petitioner also brings two dependent applicants with them to the U.S., the sheer number of EB-5 visas available in these categories over this year and next provides many immigrant visa numbers for applicants and their dependents in both set-aside categories and drastic retrogression wait times are not yet predicted.

Additionally, it is important to keep in mind that the data provided reflects raw numbers of petition filings and does not take into account potential roll overs of additional unused immigrant visas, as noted above. In addition, applicants born in under-subscribed countries, like Vietnam and Taiwan, with robust demand for EB-5 immigrant visas that may qualify for the set-aside category still have the option to choose to process under the general pool of unreserved EB-5 visa numbers, thereby freeing up additional availability under the reserved high-unemployment and rural TEA set-aside categories for individuals born in mainland China. This selection is typically made at the time that the National Visa Center (NVC) processes the immigrant visa application for applicants based outside of the U.S.

Key Takeaways

  1. There are a record number of EB-5 visas available to applicants in both the high unemployment and rural area set-aside categories in FY 2024 and FY 2025.  While stakeholders need more data from USCIS on the breakdowns of pending I-526E Petitions between the high unemployment and rural set-aside categories, there is a record number of visas available and extensive backlogs are not expected to occur like those experienced by pre-RIA I-526 Petitions.
  2. File the I-526E Petition and associated AOS applications concurrently if possible. Although visa numbers remain available in the set-aside categories even for traditionally high-demand countries, the dynamics associated with the DOS visa bulletin may result in retrogression with little notice. Filing concurrently where eligible can provide multiple benefits in the event of retrogression, including:
    • Locking in dependent child’s age under chart A or chart B of the DOS Visa Bulletin, which under the Child Status Protection Act (CSPA) allows for a tolling of age progression while the petition is in process and based on the unavailability of a visa number; and
    • Obtaining short-term U.S. immigration benefits that allow for work (employment authorization document (EAD)) and travel (advance parole (AP)) while the USICS processes the AOS filing.
  3. Individuals born in under-subscribed countries with qualifying investments in rural or high-unemployment TEAs should consider opting for processing under the general unreserved pool where possible. This would allow for use of additional reserved immigrant visas in the set-aside categories by those born in countries with higher demand for EB-5 immigrant visas, such as China and, potentially, India.
  4. Monitor visa bulletin progression and available government data. It will remain important to continue monitoring Visa Bulletin releases and planning for potential retrogression. As noted above, while the set-aside categories created under the RIA remain broadly available for immigrant visas and concurrent AOS processing, conditions may change with little notice as the government processes its backlog of filed EB-5 petitions or if USCIS speeds up its processing of I-526E Petitions.

1 INA § 203(b)(5)(B)(i)(I).

2 See INA § 245(n); 203(b)(5).

3 See U.S. Dept. of State Visa Bulletin.

4 See INA § 203(b).

5 See 88 Fed. Reg. 50, 18252 (March 28, 2023), available at: https://www.govinfo.gov/content/pkg/FR-2023-03-28/pdf/2023-06252.pdf.

6 See, e.g. “Practice Pointer: Strategic Planning in an Era of EB-5 Visa Waiting Lines,” AILA EB-5 Committee, AILA Doc. No. 18060537, June 5, 2018.

7 See, e.g., “The CIS Ombudsman’s Webinar Series: USCIS’ Backlog Reduction Efforts,” June 22, 2022.

8 See, e.g., “Employment-Based Adjustment of Status FAQs,” USCIS, May 20, 2024.

9 See “AIIA FOIA Series: Updated I-526E Inventory Statistics for 2023,” American Immigrant Investor Alliance, Feb. 29, 2024.

10 Id.

11 See USCIS Quarterly Statistics “All USCIS Application and Petition Form Types (Fiscal Year 2024, Quarter 2)

On Wednesday, May 25, 2022, U.S. Citizenship and Immigration Services (USCIS) will hold a listening session from 2 to 3 p.m. ET. The session is intended to allow interested stakeholders an opportunity to provide input on rulemaking related to the implementation of the EB-5 Reform and Integrity Act of 2022. In addition to seeking general feedback about the EB-5 program, USCIS also is seeking input on evidentiary requirements for Form I-526 filings, recommendations related to undefined or ambiguous terms, and recommendations for processes or requirements that should be clarified. Greenberg Traurig EB-5 attorneys will be participating in the call to offer comments and insights into the topics raised based on our experience of filing thousands of EB-5 I-526 client applications for over 15 years.

As we have been reporting, the EB-5 Regional Center Program remains in a period of lapse since June 30, 2021, requiring Congressional authorization via legislation. This legislation is required so that (1) new I-526 Petitions can be filed with USCIS by new investors, (2) USCIS can continue to process pending I-526 Petitions and I-485 Applications by existing investors, and (3) the State Department can issue immigrant visas to EB-5 investors waiting outside the United States to immigrate based on their approved Regional Center I-526 Petitions. It is anticipated that Congress may pass another short-term continuing resolution on or before Feb. 18, 2022, through March 11, 2022. It is not anticipated that an EB-5 extension legislation will be attached to the short-term Continuing Resolution. It will be important for Congress to take action on or before March 11, 2022, to reauthorize the Regional Center Program.

Stakeholders who wish to reauthorize the EB-5 Regional Center Program should contact their legislators. The American Immigration Lawyers Association (AILA) and its Advocacy Action Center, Stakeholders of the EB-5 Regional Center Program, have also created a short form to easily email or write to legislators for this purpose.

As a follow up to our Oct. 13 blog post, the EB-5 Regional Center Program (the “Program”) continues to be lapsed, as the U.S. Congress passed a Continuing Resolution to fund the government in the short-term through Feb. 18, 2022. The delay through Feb. 18, 2022, gives the federal government additional time to negotiate the outstanding funding bills for certain agencies and averted a federal government shutdown on Dec. 3, 2021.

As the reauthorization of the Program after its expiration on June 30, 2021, was expected to be included in the Appropriations funding bills, the Program was not extended on Dec. 3, 2021, and continues to be in a period of lapse.

USCIS updated its website on Oct. 4, 2021, stating that it will not accept new I-526 Petitions based on a regional center investment, it will hold all pending I-526 Petitions based on the Program, and it will hold all pending I-485 applications based on the Program at least through the end of 2021. It is expected that USCIS will issue updated guidance in December 2021 to confirm if it will continue holding in abeyance these petitions and applications based on the Program. Likewise, the U.S. Department of State (DOS) confirmed in October that it would no longer accept payment, applications, and documents for immigrant visas based on the Program due to its lapse. As such, DOS processing of immigrant visa applications for EB-5 Program applicants has been halted. USCIS confirmed that it continues to accept and process I-829 Petitions filed by conditional permanent residents under the Program.

Various stakeholder organizations continue to lobby Congress for an extension of the Program, as statistics indicate more than 99,000 EB-5 Program investors and their dependent family members are impacted negatively by the lapse of the Program. It is expected that congressional offices will be in contact with USCIS regarding the policy of holding in abeyance these applications while a legislative solution is enacted.

 

On Oct. 4, 2021, USCIS updated its EB-5 website and issued an alert regarding the current lapse of the EB-5 Regional Center Program. The Regional Center Program (the “Program”) has been lapsed since June 30, 2021, when Congress did not timely reauthorize it. USCIS confirmed on its website several important points for applications after June 30, 2021:

  1. USCIS will not accept a new Form I-526 Petition filed by an EB-5 investor based on a Regional Center investment until Congress reauthorizes the Program.
  2. USCIS will not accept a new Form I-485, Application to Adjust Status to Permanent Residence (the form used by immigrants with an approved I-526 to apply for the two-year green card in the United States), filed by an EB-5 investor and their family members until Congress reauthorizes the Program.
  3. For any Form I-526 Petition and I-485 Application pending as of June 30, 2021, USCIS will continue to hold these applications in abeyance until at least Dec. 31, 2021. At that time, USCIS will reevaluate the practice of holding these cases in abeyance based on the progress of legislation before the U.S. Congress.
  4. For any “Request for Evidence” issued on a Form I-526 Petition or I-485 Application, USCIS has confirmed that applicants should respond by the deadline.
  5. USCIS will continue to adjudicate Form I-829 Petitions for those investors filing to remove the conditions on the two-year green card. EB-5 investors can continue to file Form I-829, and USCIS will continue to adjudicate these petitions.

What is the status of legislation reauthorizing the EB-5 Regional Center Program?

At present, various Regional Center Program stakeholders have agreed upon terms to reauthorize and extend the EB-5 Regional Center Program. While no text of the legislation is available at this time, the proposed legislation would extend the program for several years, increase the minimum investment amounts to account for some inflation for newly filed cases, “grandfather” and protect existing EB-5 investors from subsequent law changes, and create a framework for Regional Center administration/oversight and investor protections.

It is anticipated that any proposed legislation to extend the Regional Center Program would be attached to an appropriations measure – either an omnibus or Continuing Resolution. Congress passed a short-term Continuing Resolution on Sept. 30, 2021, to continue funding the federal government through Dec. 3, 2021. Because of this, the Regional Center Program likely will not be extended until at least Dec. 3, 2021. This date could be pushed further, should Congress pass another Continuing Resolution to temporarily fund the government beyond Dec. 3.

How long will USCIS hold cases in abeyance?

USCIS updated its website on Oct. 4, 2021, to state that it will hold pending I-526 Petitions and pending I-485 Applications until at least the end of calendar year 2021, absent legislation reauthorizing the Regional Center Program. If no legislation is passed by Dec. 31, 2021, USCIS will reevaluate its policy to continue holding these cases in abeyance. USCIS may well be in contact with Congress and aware of upcoming legislation for the Program’s extension.

What will happen to pending cases if no reauthorization of the Regional Center Program is passed?

It appears that USCIS is monitoring the status of prospective legislation, as it confirmed on the website that it will hold cases until at least Dec. 31, 2021, and at that time, it will reevaluate whether to continue to hold these cases if no Regional Center legislation is passed. Moreover, there is additional proposed legislation to protect EB-5 investors who previously filed cases on or before June 30, 2021. If a significant period of time passes beyond Dec. 31, 2021, and no Program reauthorization is proposed by Congress, then USCIS potentially could deny pending I-526 Petitions. However, at this time, it appears that a bill will be attached to the U.S. Budget Bill to be taken up by Congress in December.

What will happen to EB-5 investors who are not yet in the United States on the two-year green card if there is no reauthorization of the Regional Center Program?

Importantly, there is no “grandfathering” at this time to protect investors who filed I-526 Petitions before June 30, 2021, when the Regional Center Program was authorized. USCIS is holding all I-526 Petitions and I-485 Applications. The National Visa Center (NVC) is holding all pending immigrant visa applications at this time. Before processing can resume on these cases, the Program must be reauthorized by Congress. Again, it appears that a bill will be attached to the U.S. Budget Bill to be taken up by Congress in December.

What will happen to EB-5 investors who are in the United States as conditional permanent residents?

USCIS confirmed on its website that EB-5 investors who are in conditional permanent residence can continue to file Form I-829, even during the lapse of the Regional Center Program. USCIS also confirmed it will continue to decide Form I-829 Petitions.