USCIS Issues Further Guidance on EB-5 Investment Timeframe and Investors Affiliated with Terminated Regional Centers

U.S. Citizenship and Immigration Services (USCIS) is providing additional guidance on the interpretation of changes to the EB-5 program within the Immigration and Nationality Act (INA) implemented by the EB-5 Reform and Integrity Act of 2022 (RIA). This guidance specifically addresses the required investment timeframe and the treatment of investors associated with terminated regional centers. 

The clarification pertains to the required investment timeframe for EB-5 investors filing either Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor, on or after March 15, 2022, in accordance with the RIA. 

For investors aiming to remove conditions on their permanent resident status under INA 216A based on an EB-5 immigrant visa petition filed post-RIA, the RIA eliminated the necessity for investors to maintain their investment throughout their conditional residence. Additionally, the RIA introduced a modification to INA 203(b)(5)(A)(i), specifying that the investment required by this section must be anticipated to remain invested for a minimum of two years. 

Under these RIA changes, investors filing petitions post-RIA are no longer obligated to sustain their investment throughout their conditional residence. Instead, the INA now mandates that the investment is expected to remain invested for at least two years, provided job creation requirements are met. Although the statute doesn't explicitly specify the start date of the two-year period under INA 203(b)(5)(A)(i), USCIS interprets it as the date when the requisite qualifying investment is made. In essence, this is the date the investment is contributed to the new commercial enterprise and placed at risk, adhering to relevant requirements, including being made available to the job-creating entity. If the investment exceeds two years before filing the I-526 or I-526E petition, USCIS advises maintaining the investment when filing to properly assess eligibility. 

Before the RIA, the termination of a regional center would have been considered a material change to eligibility, potentially resulting in denial or revocation of associated investor petitions. The RIA introduced a new provision at INA 203(b)(5)(M), allowing good faith investors affiliated with terminated regional centers to maintain eligibility in certain circumstances. USCIS provides guidance on interpreting this provision for pre-RIA investors upon regional center termination: 

  • USCIS interprets INA 203(b)(5)(M) to apply to pre-RIA investors associated with a terminated regional center. 
  • USCIS extends the deadline for pre-RIA investors to respond to a regional center termination notification until the agency adjudicates their Form I-526 petition. If necessary, USCIS may issue a Request for Evidence or Notice of Intent to Deny for the investor to establish continued eligibility. 
  • Procedural flexibilities may be employed to extend the response deadline of 180 days for notices of continued eligibility. 
  • In cases of regional center termination for administrative noncompliance, USCIS may determine that the termination would generally not adversely affect a pre-RIA investor's basic eligibility. 
  • USCIS may choose not to extend applicable response deadlines when a regional center is terminated for substantive reasons that may impact the continued eligibility of associated investors. 

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