Under the EB-5 programme, individuals can apply for lawful permanent residence (aka green card) in the United States if they make the necessary investments and create at least 10 permanent full-time jobs for American workers. At present, investors need to invest $500,000 in a project in a rural area or an area of low employment, or $1 million otherwise.
While the direct investment route (where the investor sets up his/her own business) continues to operate under the EB-5 programme, nearly 90% of investments were made via recognised regional centers (which, in turn, sponsor business entities) – this programme lapsed on June 30, 2021. Since then, the investors have been caught in a limbo.
In recent years, this programme has elicited interest from high-net-worth individuals based in India and also from the H-1B holders who are Indian nationals, who otherwise have to wait for an eternity for an employment-based green card. The EB-5 offered a quicker route. A few lawsuits have also been filed challenging the lapse.
However, there is some good news round the corner. Mitch Wexler, partner at Fragomen, a global immigration law firm spoke to TOI about the developments.
Is there a ray of hope for those who have already invested under the EB-5 programme and the aspiring investors?
After the US Congress passed a continuing resolution that funded the federal government through March 11, 2022, it appears an agreement was reached for a draft bill reauthorising the Regional Center programme.
What are the key features of this draft bill? Is there an increase in the investment requirements?
As of now, the draft bill is pending approval from the Appropriations Committee and could be subject to change. If enacted, the bill will become the ‘EB–5 Reform and Integrity Act of 2022’.
The bill proposes to increase the minimum investment amount from $500,000 to $800,000 for investments in Targeted Employment Areas (TEAs) or infrastructure projects, and from $1,000,000 to $1,050,000 for investments in non-TEAs. This would take effect on the date of enactment which may be as early as March 11, 2022 or perhaps later in the month. In other words, pending investor immigrant petitions will not be subject to the new rules or higher investment amounts.
The bill will reauthorise the EB-5 Regional Center Program for five years, until September 30, 2027. This would take effect 60 days from the date of enactment. It seeks to allow unused EB-5 visa numbers at the end of the fiscal year to be rolled over to the EB-5 visa pool for the following fiscal year. It also seeks to grant sole authority for TEA designation to the Secretary of Homeland Security or a designee of the Secretary. This would take effect on the date of enactment. Further, it directs US Citizenship and Immigration Services (USCIS) to issue regulations clarifying the requirements for redeployment of EB-5 capital.
What is your immediate advice to stakeholders?
The bill permits concurrent filing of I-526 petitions and applications for adjustment of status. This would be effective on the date of enactment. We would then recommend all investors with pending I-526 petitions to consider filing such applications, should priority dates retrogress down the road.
Should there be legislative action reauthorising the programme in March, the final action dates for the Regional Center EB-5 preference category would immediately become ‘current’ for all countries except mainland China (which would have a cut-off date of November 22, 2015). This means that a visa would be immediately available to all Regional Center investors who were not born in mainland China and who have an approved I-526 petition. Such investors may file to adjust their status if in the United States or if they are overseas, they can apply for their EB-5 immigrant visa at a US Consulate, once they are deemed to be ‘documentarily qualified’ by the National Visa Center (NVC) without being subjected to additional wait times.