Navigating cliffs in the EB-5 landscape (I-485, securities compliance, visas, sunset, advocacy)

I mentioned the new whitepaper EB-5 After the RIA at the end of my last post, but I’d like to highlight it again as an important resource. CanAm organized a set of articles by industry experts to lay a chart over the new EB-5 landscape created by the EB-5 Reform and Integrity Act of 2022 — highlighting opportunities, flagging pitfalls, and discussing navigation. The typical EB-5 resource on the Internet blurs over risks – this whitepaper shines a bright light on them. Step 1 to avoid falling off a cliff is to see it. And then to strategize ways to navigate it, as the articles in this whitepaper strive to do.

Joey Barnett contributed a short must-read article that points out specifically what concurrent I-485 filing does – and does not – mean for legal status. This is essential knowledge for U.S.-based EB-5 investors who want to avoid finding themselves in removal proceedings (and for EB-5 sales agents who don’t want to endanger investors by overpromising the effect of EAD).

Mariza McKee and Mike Xenick contributed must-read articles for regional centers, issuers, and promoters who want to see and avoid the poorly-marked brinks of securities violations, particularly in the new environment where many investors are filing petitions in the U.S. The articles highlight essential (and easily-overlooked) responsibilities of parties in the chain of compliance, flag specific pitfalls to avoid, and point out practical strategies for staying safe and on the right side of SEC rules.

Lee Li, Aaron Grau, and I contributed articles that face the looming need for new legislation to keep EB-5 alive. Grandfathering for regional center program investors currently ends in September 2026, ahead of the 2027 regional center program sunset. High pending demand shows that the path to a timely EB-5 visa has already closed for the major EB-5 markets, only waiting on reserved investor approvals to push across-the-board backlog problems to the surface in the Visa Bulletin. We depend on action from Washington, DC in the coming months to keep the regional center investment window open by providing the necessary authorization and visa relief. Aaron’s article discusses strategies for these imminent life-or-death advocacy challenges, while Lee’s article and data analysis highlight the impressive economic story available to support advocacy.

For additional insight, see the webinar with Aaron Grau and Lee Li that CanAm released today: Navigating the Future of EB-5: Insights from Industry Leaders. The discussion delves into specific advocacy strategies and challenges, resources and data responsive to those challenges, and how we can contribute. I also note AIIA’s post from a few weeks ago One Year Left to Invest in a EB-5 Regional Center Project. The importance and urgency of these conversations cannot be overstated. The EB-5 future depends on today’s advocacy efforts achieving positive results against tough obstacles.

P.S. Notice also that USCIS published a new fee schedule on November 14 with lower EB-5 form filing fees. (11/18 UPDATE: The USCIS Newsroom now also has a post, including the note that: “In accordance with the Nov. 12 order, and effective immediately, USCIS will accept the fees that were in effect until March 31, 2024, which are listed in the ‘Current Fee’ schedule below. Petitioners and applicants should pay fees according to the “Current Fee” schedule, not the higher ‘Previous Fee‘ schedule. However, for items postmarked Nov. 26, 2025 or earlier, USCIS will also accept payment of the ‘Previous Fee.'”) See AIIA’s blog post for discussion of the successful litigation that accomplished this result, and implications for potential future legal actions on behalf of investor interests. We’re now temporarily back to pre-2024-level filing fees (good for applicants, bad for IPO’s budget) until DHS can finalize the pending new EB-5 fee rule based on the required EB-5-specific fee study. (And FYI, for those curious about how DHS calculates form fee levels as a function of its budget and volume projections, I’m sharing my Excel summary of DHS’s calculations in the 2016, 2022, and 2025 fee rule studies.)