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USCIS Issues New Guidelines on EB-5 Investment Duration and Investors Linked to Closed Regional Centers

USCIS Delivers Comprehensive Guidance on Changes to EB-5 Program Post EB-5 Reform and Integrity Act of 2022

In response to the EB-5 Reform and Integrity Act of 2022 (RIA), USCIS has released additional guidance concerning alterations to the Immigration and Nationality Act (INA), specifically focusing on the required investment timeframe and the treatment of investors affiliated with terminated regional centers.

The guidance outlines the revised investment timeframe for EB-5 investors filing Form I-526 or Form I-526E on or after March 15, 2022, as mandated by the RIA. Notably, the RIA eliminated the obligation for post-RIA investors to sustain their investment throughout their conditional residence. Instead, investors are now only required to maintain their investment for a minimum of two years, contingent upon meeting job creation criteria.

USCIS interprets the two-year period under INA 203(b)(5)(A)(i) to commence from the date the qualifying investment is made, emphasizing the importance of adherence to applicable requirements. Should the investment exceed two years before filing the I-526 or I-526E petition, maintenance at the time of filing is recommended for proper evaluation of eligibility.

Furthermore, the RIA introduced a provision at INA 203(b)(5)(M) allowing good faith investors associated with terminated regional centers to retain eligibility. USCIS extends the application of this provision to pre-RIA investors and provides guidance on its interpretation. Procedural flexibilities are employed to extend response deadlines for pre-RIA investors facing regional center termination, with consideration for various scenarios, including administrative noncompliance and substantive reasons affecting eligibility.

In instances of administrative noncompliance, USCIS may determine that termination would not adversely impact a pre-RIA investor’s basic eligibility, emphasizing the preservation of investments and job creation. However, when a regional center faces termination for substantive reasons, USCIS may enforce applicable response deadlines to assess the continued eligibility of associated investors.

Source: USCIS