• 29 December 2021
EB-5 Investor Program 2022: New Challenges or Window of Opportunity?

Recent developments in the US EB-5 investment-based green card program are prompting foreigners seeking a US permanent resident card to reconsider their priorities and strategies. The changes affecting the EB-5 program might cause mixed feelings about your chances of receiving a green card through an investment in the US economy. As the common wisdom says, there are always two sides to every coin. So, whatever the nature of the proposed changes, a thorough analysis of their advantages and disadvantages will help build a successful immigration case for you and your family.

Currently, the coveted EB-5 green card program has witnessed THREE major developments.

Let’s have a close look to figure out how you can either take advantage or bypass them to move on with your immigration plans.

EB-5 Regional Center Program Expired on June 30, 2021

On June 30, 2021, the Regional Center Program lapsed with no definite date yet revealed for re-extension. The EB-5 Regional Center Program was created by the US Congress to promote economic growth in certain areas, as approved by the USCIS, by encouraging noncitizen business people to invest in commercial enterprises coordinated by Regional Centers. In return, EB-5 visas, which allow receiving a permanent resident card, have been issued to investors and their family members.

Starting from July 1, 2021, the USCIS has been rejecting any petitions or applications associated with the Regional Center Program. However, as over 90% of EB-5 investors preferred the Regional Centre program and brought significant new capital to the US from abroad, the revival of the program is a matter of time.

However, the situation is slightly different this time, as the Regional Center program was previously attached to and passed with the US Budget Bill. This time, the EB-5 bill is no longer attached either to the budget bill nor to another larger bill, called the Infrastructure Investment and Jobs Act. Therefore, it must be passed on a standalone basis.

Recently, the focus of EB-5 investors has shifted to the Direct Investment Program which continues to accept applications, as the lapse in authorization does not affect EB-5 petitions filed by investors seeking an EB-5 visa under the Direct Investor Program. Here investors might take comfort from the second major development in the EB-5 visa program.

Minimum Amount Required to Be Invested Is Reversed

Minimum Amount Required to Be Invested Is Reversed

The second and perhaps the most optimistic development in the program is the ruling in the Behring case, which lowered the minimum investment amount for the EB-5 program down to $500,000, from the $900,000 introduced in November 2019.

On June 22, 2021, a federal court canceled the application of the existing EB-5 Modernization Final Rule, reversing the standard minimum investment amount to one million and the minimum investment amount for Targeted Employment Area (TEA) to $500,000.

Loan as Source of Funds Accepted

The third change in the EB-5 Program might also bring potential investors some optimism. In another federal case, the court didn’t support the USCIS interpretation of unsecured loans as indebtedness. Until now, the USCIS denied all petitions that used unsecured loans as a source of funds. The USCIS’s position was that cash proceeds from unsecured loans were not cash, but indebtedness.

The courts stated, “The buyer’s source of cash, whether paycheck, gift or loan makes no legal or practical differences.”

In spite of this change, the USCIS will continue to insist on verifying the lawful nature of loan proceeds and placing the required amount of capital at risk. Potential investors are advised to contact immigration attorneys to make sure that any documentation proving the lawful source of their funds is clear and complete.

What Can Potential Investors Do in 2022?

Circumstances can change very quickly, and investors should use the time wisely. There is a lot of speculation about further developments regarding the EB-5 Investor Program. Although the USCIS has not appealed to the US Supreme Court with a request to quash the court ruling that has reduced the minimum investment amount significantly, they are likely to take action to pass a new regulation, increasing the EB-5 investment amount or changing the definition of Targeted Employment Area.

The window of opportunity is likely to stay open for a short period until the regulations are updated. As such, investors need to take advantage of the opening and start the pre-work that will allow them to do their filing on a timely basis.

With so much at stake, it is essential to complete all paperwork properly as even a minor delay can ruin the chances of moving to the US on an EB-5 immigrant visa. It is advisable to consult an experienced immigration attorney at the early stage of the immigration process for the most efficient immigration strategy.

ACS Law Offices Inc. attorneys will continue to monitor new developments in immigration legislation and be ready to counsel you on any questions you may have regarding the recent news. Do not hesitate to contact us to learn more on how we can help you enter the US legally and not miss new openings to get the visa you are seeking.