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2022
EB-5 Reform and Integrity Act Summary Provisions

Reauthorization period: 5 years (to 2027)

Minimum investment amount: $800,000 (TEA), $1.05 million (non-TEA). In 2027 and every 5 years thereafter, the EB-5 investment amount will be automatically adjusted.

Reservation of visas and visa carryover: Of the 10,000 visas per year, 20% are reserved for rural projects, 10% for urban projects with high unemployment, and 2% for infrastructure projects. Any unused visas in a financial year will be carried over to the next year in the same category.

TEA – Contiguous Census Areas of High Unemployment Areas: The high unemployment areas of each applicable census tract, and any contiguous area where the NCE has a primary presence and where the weighted average is not less than 150% of the national average unemployment rate. Similar to the definition in the 2019 EB-5 Modernization Rules.

TEA Definition and Duration: A TEA is defined only by the Department of Homeland Security or other federal officials. State and local governments cannot designate TEAs. The validity period defined by TEA is 2 years and can be renewed for 2 years.

TEA – Infrastructure Project: A project administered by a government entity (federal, state or local) that is a job-creating entity and receives EB-5 capital investment from a New Commercial Enterprise (NCE) under the Regional Center Program as a means of maintaining, improving , or constructing a public works project.

Job Creation for Regional Center Projects: Only 90% of indirect jobs can count toward the required job creation requirement. 10% of direct job creation can still be determined using economically and statistically valid methods. If construction activity lasts less than two years, then only 75% may be indirect employment. Tenant occupancy can be counted if it is not a relocation job.

Age Determination of Child: 21 years of age who has received a conditional green card if the principal applicant files a new I-526 petition, as a child of the principal applicant whose conditional status was terminated or whose I-829 petition was denied, Can still be considered a child under 21 years of age (if still unmarried).

Priority Processing: USCIS will give priority (undefined) priority to processing applications from rural areas.

Simultaneous filing: If approval of the I-526 petition would result in immediate visa availability for the EB-5 investor (i.e., the visa announcement shows availability), then they may file the I-485 adjustment of status application at the same time as or after the I-526 petition.

Reinvestment Guidance – Not Available for Stocks or Bonds: The Department of Homeland Security will issue new regulations regarding EB-5 reinvestments. However, the EB-5 Reform Act of 2022 allows reinvestment anywhere in the United States (regardless of the location of the regional center or NCE), provided that (1) the NCE faithfully executes the business plan without significant changes; (2) NCE has created enough jobs for all NCE investors; (3) JCE has repaid the capital initially invested in the initial project; (4) Capital is at risk and must not be invested in passive investments such as stocks or bonds.

Source of Funds Requirements: EB-5 investors must demonstrate the lawful source of EB-5 capital and all funds used to pay management fees and other expenses. The file includes all tax returns filed within the past 7 years. For gifts and loans, funds from gifts and loans may not be used unless the funds are gifted/lent in good faith and are not given/lent to circumvent any restrictions on permitted sources. Donors and lenders must provide similar documentation of the source of funds, except for bank loans.

Priority Date Preservation: If a regional center, NCE, or JCE is terminated or barred from participating in the EB-5 program, an EB-5 investor may retain his or her priority date (and prevent the child beneficiary from aging out), provided that within 180 days, the investor The NCE is affiliated with another approved regional center, or the investor makes a qualified investment in another new NCE.

Grandfather Clause: For any petition filed on or before September 30, 2026, USCIS shall continue to process I-526 and I-829 petitions, even if the EB-5 Regional Center program lapses. The lapse of the program is not a basis for denial, and DHS may not suspend or terminate visa allocations to approved applications.

New deal investment period: Investment funds can be returned within two years, as long as employment conditions are met within two years.

 

The new bill’s regulatory provisions and measures in terms of EB-5 projects and investment fund security:

Integrity measures: The "EB-5 Reform Act of 2022" includes the following project integrity measures:

•    Establish an integrity fund

USD 10,000-20,000 per year per regional center (depending on the number of investors)

EB-5 investors pay $1,000, plus the I-526 filing fee

•  Before any investor files an I-526 petition for the project, the regional center must submit a Sample I-924/I-526. Approval is binding unless there is fraud or material change

•   Regional centers must promptly notify USCIS of any significant structural changes

•   USCIS must conduct regular on-site inspections of regional centers, NCEs and JCEs

•  Regional centers must provide USCIS and its investors with annual statements upon request describing investor capital and demonstrating compliance with program requirements

•  Regional centers must demonstrate that they have reasonable policies and procedures in place to comply with U.S. securities laws and prevent fraud

•  DHS must conduct background checks on certain personnel at regional centers, NCEs, and related JCEs, and prohibit certain aliens from owning and participating in regional centers, NCEs, and related JCEs

•  DHS may terminate, debar and penalize regional centers, NCEs and related JCEs, and related personnel for violating EB-5 regulations

•  Direct and third-party sponsors, including immigration agents, must register with USCIS, demonstrate compliance with EB-5 and US securities rules, and disclose fees received and a description of services provided

•  EB-5 projects must use a fund manager or commission an independent annual audit

•  EB-5 capital must be maintained in a non-commingled account

Administrative Appeals: If a regional center or EB-5 investor wishes to challenge a denial, revocation, termination, or sanction issued by DHS/USCIS, the party must first request an administrative appeal review from the USCIS Office of Administrative Appeals. This means that neither the regional center nor the EB-5 investor may seek judicial review (i.e., challenge the USCIS decision in court) until the administrative review process is completed. NOTE: This does not apply to lawsuits filed against USCIS for delayed approvals.

Timely Processing: The EB-5 Reform Act of 2022 requires USCIS to conduct a study within 1 year to determine the fee adjustments required for USCIS to timely adjudicate EB-5 petitions (i.e., TEA program in 90 Obtain I-526 approval within days).

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