EB-5 Reform and Integrity Act of 2022
March 11, 2022 42 Comments
The EB-5 program faces a second life thanks to the EB-5 Reform and Integrity Act of 2022, which passed the House on Wednesday and the Senate on Thursday night as part of the Consolidated Appropriations Act, 2022 (H.R.2471), and set to be signed by the President. For a content summary, I recommend Robert Divine’s March 8 article Analysis of New EB-5 Reform Bill Destined for Omnibus by March 11, 2022.
I appreciate the miracle that an EB-5 bill exists at all, considering the conflicting interests and story behind it. I am bubbling with reactions, but will start with what I love about this bill – that it passed. The bill is not the greatest good for the greatest number, but it’s some good for someone, and better than nothing for everyone. The immigration and economic promises of the regional center program still need a fight, but at least they’re still alive to be fought for.
The EB-5 Reform and Integrity Act of 2022 puts both the direct and regional center programs on a new footing, and makes changes that affect EB-5 investors past and future. USCIS will need to rewrite its policies and training and forms, I get new topics to address while marking my 12 years of past articles as all outdated, regional centers and direct EB-5 project companies will reorganize their processes and rethink their plans, past EB-5 investors will recalculate their wait time expectations and success prospects, and future EB-5 investors will enjoy new protections (including grandfathering protection, thanks to AIIA) and face new feasibility considerations.
While I wait for the Act as finalized with the President’s signature, I’ll start with a few points on timing, based on effective dates written in the text.
- Date of enactment: The President has until March 15, 2022 to sign the Consolidated Appropriations Act; the date of enactment should be as soon as that happens (could be as early as today).
- Regional Center program authorization timing: In the EB-5 law in Division BB of the Act, the new regional center program authorization is in Sec. 103(b), which has an effective date of “the date that is 60 days after the enactment of this Act.” So we’re looking at RC authorization in May. The regional center integrity requirements also in Sec. 103(b) share the 60-day effective date (giving RCs some time to organize compliance for a host of new rules, and USCIS some time to figure out new forms and procedures).
- Investment amounts and TEAs: The new investment amounts ($1,050,000 or $800,000) and TEA definitions are in Sec. 102 of the new law, which has an effective date immediately “on the date of enactment of this Act.” Investment amount and TEA changes apply prospectively. Sec. 105 repeats the principle that “a petitioner shall establish eligibility at the time that he or she files a [I-526]. A petitioner who was eligible for such classification at the time of such filing shall be deemed eligible for such classification at the time such petition is adjudicated.”
- New direct I-526 filings: Sec. 105 of the new law provides that immediately from the date of enactment, direct EB-5 I-526 can only be filed for projects with a single EB-5 investor. (If a project has more than one EB-5 investor, new I-526 must be filed through the regional center route).
- New regional center I-526 filings: The new law stipulates that regional center I-526 can be filed after the regional center sponsor has filed an “application for approval of investment in a commercial enterprise.” This application will be similar to an I-924 exemplar, but with different content requirements. At minimum, new regional center I-526 filings will wait for 60 days until the program is authorized. The wait could be longer if USCIS claims longer than 60 days to figure out the new process to accommodate the regional center approval filings that must now precede investor I-526. It will also be longer if USCIS interprets the repeal of the old statute to mean that all regional centers authorized under the old statute are voided and must reapply for designation under the new statute. (Considering processing times, I sincerely hope that’s not the interpretation.)
- Regional center visa issuance: Department of State must wait to issue regional center visas until the regional center program is authorized. But since authorization in May is now certain, I hope DOS chooses to redeem the time in March and April with advancing paperwork and interviews at least up to the point of visa issuance. (But consular and I-485 processing have been backlogged and inefficient across the board since 2020, so I am not counting on very swift action specially for EB-5 – much as we need it to minimize the impending loss of over 10,000 FY2022 EB-5 visas.)
- Visa issuance generally: The reserved visa provision in the new law is in Sec. 102, which is effective immediately on the date of enactment. The provision will not be felt immediately in practice because FY2022 has so many extra visas available in theory and so constrained by consular/USCIS processing capacity in fact that visa loss in FY22 was already overdetermined, regardless of the additional role of set-asides. I’ll write separately on this reserved visa issue, which is complicated in detail (thanks to the backlog and country caps and how EB visas roll over), but an obvious and serious concern on its face given the basics that 100%-32%=68% and that “reserved” means “reserved.”
- Concurrent filing of I-526 and I-485: The nice provision that allows I-485 filing any time “if I-526 approval would make a visa immediately available to the beneficiary” is in the Sec. 102 of the Act that’s effective immediately. I’m not sure how the visa availability condition will play out. The Visa Bulletin will show regional center visas generally available starting in May, with likely changes to final action and filing dates. The window of availability for India and Vietnam will depend on how long it takes the thousands of petitions now stuck in I-526 processing to register as backlog for the visa stage. If I were a direct investor with pending I-526, I’d talk to my lawyer about filing I-485 right away before the Visa Bulletin or USCIS have a chance to think about the regional center crowd. It looks to me as if the I-485 language in Sec. 102(d) simply references the EB-5 category, and doesn’t mention qualifications such as when the underlying I-526 was filed, but I defer to the lawyers.
- I-526 processing: Section 105(c) says that DHS should continue to process I-526 and I-829 petitions during the implementation of this Act and its amendments. It’s not perfectly clear that this directive includes regional center I-526, and I wouldn’t put it past USCIS to wait 60 days before taking up RC I-526 processing. But at least there’s zero basis for USCIS to start bulk denials of RC I-526 after March 11, since RC petitions now certainly have statutory authorization coming. The major barrier for I-526 processing is that USCIS has just been hardly working at all on EB-5, for months. Here is the recent history of Form I-526 approval volume: three approvals in December, eight in January, and eight in February. Seriously! I hope the staff that hasn’t been working on I-526 adjudication since July 2021 hasn’t been lost permanently. But even if EB-5 can get its adjudicators back very soon, I don’t expect an instant pivot from <10 I-526 approvals per month to the 300+ decisions per month that we had before July 2021 (not to mention the 1,000+ decisions per month we had before Sarah Kendall). The battle to get USCIS to process petitions is only beginning. Thankfully the new law offers new resources for the battle. Sec. 106 of the new law mandates DHS to at least make a plan for “timely processing.”
- Law interpretation: Having watched the progress of EB-5 policy and regulations since 2010, and witnessed how much time the agency takes to think or write about anything, I’m feeling faint as I contemplate how they’re going to deal with translating the hefty EB-5 Reform and Integrity Act into policies and procedures. Time to start praying for another miracle: this time, efficiency and sense at DHS. (And at the same time, to move advocacy energies toward assisting that miracle.)
Every so often, I put out the reminder that I welcome reader support for my effort on this labor intensive and otherwise unmonetized blog. I have Paypal and Zelle accounts linked to my email address suzanne@lucidtext.com (and a Paypal button), and appreciate any contributions. Regardless, I will keep writing as time permits to support the community that’s developed here, and my clients who are still bravely trying to make good use of EB-5. I appreciate all of you who have taken time to write comments and share your insights and experience here, especially over the difficult past year.
EB-5 Updates 
Thankyou for your contributions Suzanne!
Suzanne, thank you for your effort and dedication to the EB-5 Program. I have been quietly following your Blog for over 3 years now and am glad to finally be on the brink of clarity and completion. As an EB-5 Investor in the Regional Center program through Houston EB5 and having invested on the program in March 2018 I am happy to see uncertainty is about to end for the foreseeable future. A small donation has been sent via PayPal to you. It is a gesture of sincere appreciation for your work. May more donations make their way in order to support your efforts and the valued information you provide.
Although we have reasons to celebrate today, it is impossible not to do a retrospective analysis of what was experienced during the lapse.
On the positive side, the surge of AIIA and its unprecedented engagement of investors in conjunction with the posture of the rare and already known “bright spots” of the EB-5 ecosystem: yourself, Matt Galati, Wasden Banias, Robert Divine.
There is nothing to thank the regional center industry for. NOTHING!!! They brought us here in the first place. Just hope that they took a bath of humility during the process in which they subjected investors to losses and a deep agony. Was it worth it? It will be almost 1 year until the new measures are fully implemented and I don’t believe we have landed in a better place than we would have had they accepted the deal on 06/30/2021, with the exception of grandfathering (which the industry is trying to steal the credit for and whose victory belongs to the AIIA and its supporters).
Wishing USCIS also bring integrity to their processing times. Without it, we will continue to be in agony and the bad players in the industry will continue to take advantage of the program. But for now, let’s have a beverage of choice and enjoy the moment!
Well said!
Does everyone remember the July 1, 2021 video from Jeff Campion and Laura Reiff in which they gave a long wish list to justify EB5IC’s role in causing the lapse? They talked about exclusion of derivatives in visa numbers, ability for investors to enter the US on a temporary basis and work, backlog relief to counter balance set-asides, easier TEA definition, premium processing, and looser integrity measures (https://vimeo.com/569861376), none of which has come to pass. What exactly did they achieve? And at what cost to investors?
Jeff always claims that he tried to provide “real time” updates as things changed during the negotiations. And I trust him. But that is not the question. The relevant question is: WHAT DID EB5IC ACHIEVE BY CAUSING THE LAPSE??? A comparison of the pre-lapse Grassley/Leahy bill and the current at gives a clear answer: NOTHING!!!
NEVER, NEVER FORGET. Even if you FORGIVE.
Well said. Those RCs, especially the NYC RCs are villains who have cheated the investors and the general public for so long. I cursed them to death.
Received your post on email and got to know good news on RC reauthorisation. Thank you Suzanne.
When will USCIS make visa available for EB5 RC in visa newsletters?
March, April, May, Jun ….
>The nice provision that allows I-485 filing any time “if I-526 approval would make a visa immediately available to the beneficiary” is in the Sec. 102 of the Act that’s effective immediately. I’m not sure how the visa availability condition will play out.
The visa availiblity condition is clearly defined by regulations. Both the USCIS policy manual and the Foreign affairs manual clearly define when a visa is considered as “available”.
The USCIS policy manual when discussing CSPA defines it as
”
In order for the immigrant visa to be considered available, two conditions must be met:
The petition must be approved; and
The visa must be available for the immigrant preference category and priority date.
Therefore, the date the visa is considered available for family and employment-based preference applicants is the later of these two dates:
The date of petition approval; or
The first day of the month of the DOS Visa Bulletin that indicates availability for that immigrant preference category and priority date in the Final Action Dates chart. [28]
“
That means direct investors from backlogged countries who have a pending I-526 should put in an I-485 application as soon as possible before DOS changes the Visa Bulletin. If you are regressed later (by the look of things you will in 60days), your I-485 adjustment of status application will be put on hold until your priority date once again becomes current. However, your Advance Parole and Employment Authorization Document (AP/EAD) combo card will be processed and can be renewed even while your case is retrogressed.
The question is how many of them are in US now?
I just got an email that EB-5 Bill Signed by President Biden now and Today, March 11, 2022 President signed the Omnibus spending bill that included the 2022 EB-5 Reform and Integrity act, authorizing the EB-5 Regional Center Program until 2027.
Congratulations everyone last milestone done.
You have been spending lot of time to write well research and detailed articles on EB5. Information you provide is invaluable and not seen or found elsewhere. It’s unique and very high quality. Made a small donation towards my tiny contribution to your great work.
Wish you good luck and prosperity
do the country visa allocations still apply? i.e 7% of visas per country per year or did they change it.
Of course! The question is how the restriction will be applied for “reserved visas”.
I’m very happy to hear that RC reauthorized .
I’m direct investor received I-526 approval on last November 18th 2021. And file AOS January 14th. Received EAD combo card march 2nd for two years. I hope everyone who invested in RC can be sleep peacefully!
Jan 14, 2022 and card in hand in March? Just 2 months to get EAD combo card?
Actually officially took 31 days, I file Jan 14th and case received by field office January 25th EAD approved February 25th.
Was it expedited? Is this different for Direct/ RC applicants. I have an approved I526 but hesitant to start the EAD process as I need to start full time school in August and I will not be able to apply for F1 if I apply for AOS, and the school needs the EAD card… which Center was this?
No I didn’t expedited, just submitted all form I-485, I-765 & I-131 together include I-693.
And which Center was it? California? Thanks for patiently responding to my queries
Yes it was California service center.
Thank you
Hi Suzanne,
I have a question about investors from countries which suffer limited Visa numbers (China, India etc)
Now that concurrent filing of I-485 (AoS) is allowed, does that mean that investors who are on consular processing will have tougher time getting a visa allocation since many investors already in the US would have I-485 already filed and waiting to grab the visa quick when available?
How does USCIS divide visa numbers between AoS and CP? As I understand, for investors living outside the US, it takes 1-2 years from I-526 approval to interview at US consulate in their local country. During this 1-2 year, similar priority dates with investors within US will get their I-485 processing sooner and taking up those 700 visas. So does that mean investors outside US will be taking the additional delays?
Concurrent filling is not open to investors from backlogged countries as there won’t be visas available. There might be a small window of opportunity if existing investors are allowed to do that before the Visa Bulletin is updated. Everyone has a place in the queue, I.e. a priority date.
What about countries which do not have backlogged but need consulate interview? Is there a new way to get into US earlier?
Hi Suzanne,
Could you please help about me the question below:
On pages 2624 + 2625 of the Bills that have this:
(d) CONCURRENT FILING OF EB–5 PETITIONS AND APPLICATIONS FOR ADJUSTMENT OF STATUS.
— Section 245 of the Immigration and Nationality Act (8 U.S.C.1255) is amended — (1) in subsection (k), in the matter preceding paragraph (1), by striking ‘‘or (3)’’ and inserting ‘‘(3), or (5)’’; and (2) by adding at the end the following:
‘‘(n) If the approval of a petition for classification under section 203(b)(5) would make a visa immediately available to the alien beneficiary, the alien beneficiary’s application for adjustment of status under this section shall be considered to be properly filed whether the application is submitted concurrently with, or subsequent to, the visa petition.’’.
My case’s PD is 10/2017. I am principle applicant. My daughter is now live in the US with the F1 visa. I’m now in my home country to wait for reschedule the interview appointment (it has cancelled 1 time due to the pandemic).
So the question is:
Can my daughter apply for the adjustment of status (i485) right now?
Please assist me.
Thank you so much.
Best Regards.
Dependents can’t file the I-485 by themselves. if the primary applicant is in the US on a non immigrant status then they and their dependents (who are in the US) can apply for I-485.
Thank you for the excellent summary, Suzanne!
Is it known what are the implications for the concurrent filing? What happens if the i526 is not approved within 2 years of granting conditional i484?
I’m excited about the opportunity but also don’t want to risk my current status in the US
Your I-485 can’t be approved before the I-526 is. If the I-526 is denied then the I-485 will be denied too.
Concurrent filing will allow some of the steps to happen in parallel with I-526 but not all.
Ideally. You’d concurrently file get your EAD/AP but maintain your H1-B staus (at the very least till the I-526 is approved and use the EAD only in an emergency – AP use to enter the US is perfectly fine as long as you are continuing your H1-B job with your H1-B spensoring employer.
“Concurrent filing of I-526 and I-485: The nice provision that allows I-485 filing any time “if I-526 approval would make a visa immediately available to the beneficiary” is in the Sec. 102 of the Act that’s effective immediately.”
HI Suzanne, does this apply only to investors already in the USA? Can a dependent, who is already in the USA no FI file for i-485? Thank you for everything.
Thank you Suzanne for all your detailed unbiased opinions and research.
I am also interested in this. I am currently in the US with an H-1B visa and have a pending I-526 with June 2019 date.
I would appreciate if we can get this clarified soon so we can get the Work Permit and AP before the Priority retrogates.
Thank you Suzanne for all that you do! I’ve made a very small contribution via Zelle. Good luck to you.
When will i485 processing start ?
Thanks for Sussan’s blog which give us more true information to understand EB5 clearly!
It is a happy day for many eb5 investors but it is also a heartbroken day for more Chinese investors.3200 reservation means discard more than half Chinese investors at last.
American are always pround of equal to everyone in business, but it is obviously not the case in EB5. The risks to the backlogged investors are much higher than those who need not wait. After the new EB5 Bill passed, Chinese backog will prolong to the point of dispair, this unequal condition will be more servere than before accordingly. Several tens of thousands Chinese investors would be doomed to lost not only GC but also their 55k money for so-called folded investment policy, the obviously unfair PPM also locks their money which is very difficult to withdraw.
it is a sorrow day for us!
As an absolute staple of EB5, it is a shame that the Chinese investors are abandoned by both American benefical parties and G/L. This kind of action,(spending big customer’s money, but giving small customer’s benefit first ), really makes them disreputable.
We, most Chinese investors,feel just like the abandoned Afghans who have ever served the United States troops, hopeless, lost half life’s revenue for nothing, waiting for the death sentence from Taleban.
You continue cheering, we are dispointed…
I am very sorry for the situation! I plan to focus forthcoming articles on the situation of Chinese investors. The backlog problems are truly difficult to solve, but at least I want to keep trying to reduce the number of people who can genuinely or deceitfully say that they don’t understand the problems for Chinese investors or the terrible impact of the new reserved visa rule.
When will President Biden sign the omnibus and it become law?
Biden already signed on Friday and it is law now.
President Biden has not yet signed it. It oassed the Senate on Thursday. You can track it on this link:
https://www.congress.gov/bill/117th-congress/house-bill/2471
I believe it was only the CR that was signed.
https://www.congress.gov/bill/117th-congress/house-bill/2471?q=%7B%22search%22%3A%5B%22Hr2471%22%2C%22Hr2471%22%5D%7D&s=1&r=1
he signed today!
https://thehill.com/homenews/administration/598074-biden-signs-15-government-funding-bill-with-ukraine-aid
Hi Suzanne, thank you so much!
We are from India, filed in Nov 2018 and approved in April 2021. My child was 20.5 years when we filed the I-526.
The visa date for India was current in April 2021.
What happens now with the age of child since we wanted to “seek to acquire” and had sent emails to NVC and USCIS but never got any visa bill or any updates after the I-526 approval in April 2021.
And the period to seek to acquire is a year but the program had lapsed.
What can we do to ensure our child gets EB5 as dependent?