INA 203(b)
This page copies the text of the EB-5 program law at INA 203(b)(5), as published by Cornell, and EB-5 Questions and Answers (Updated Oct. 2023), as published by USCIS on 10/11/2023, with headings and HTML anchors for ease of reference to specific passages.
- 8 U.S. Code § 1153 – INA 203(b)(5) Employment creation
- (A) In general
- (B) Designations and reserved visas
- (C) Amount of capital required
- (D) Definitions
- (E) Regional center program
- (F) Business plans for regional center investments
- (G) Regional center annual statements
- (H) Bona fides of persons involved with regional center program
- (I) Compliance with securities laws
- (J) EB–5 Integrity Fund
- (K) Direct and third-party promoters
- (L) Source of funds
- (M) Treatment of good faith investors following program noncompliance
- (N) Threats to the national interest
- (O) Fraud, misrepresentation, and criminal misuse
- (P) Administrative appellate review
- (Q) Fund administration
- (R) Required checks
- (S) Protection from expired legislation
- EB-5 Questions and Answers (updated Oct. 2023)
- Regional Centers
- 1. Is there a specific order for filing applications for regional center designation, applications for investment projects, and immigrant petitions for investors in regional center projects?
- 2. Can pre-RIA investors retain their eligibility if their regional center is terminated?
- 3. Do regional centers that properly filed the Forms I-956 and/or I-956G versions in effect on the filing date need to refile any new form published after the date they filed?
- 4. Will USCIS allow regional centers to supplement any filed Form I-956G with additional information requested?
- 5. What is the status of USCIS’s review of initial Form I-956 and amendments?
- 6. USCIS suggested in response to comments to the Form I-956F that regional centers can interfile any non-material updates to the application while the application is pending adjudication. Before the RIA, any such updates could be incorporated directly into the investors’ Form I-526 petitions. Can USCIS clarify if non-material updates to pending I-956Fs can be interfiled and will not require a new filing?
- 7. When must a regional center file a Form I-956 amendment?
- 8. Are all regional centers—newly designated as well as previously designated—subject to the new provisions of the INA added by the RIA?
- 9. When is the annual Integrity Fund Fee due and what amounts should regional centers pay?
- 10. How do I properly file my Form I-956H, Bona Fides of Person Involved with Regional Center Program?
- 11. Why was I scheduled for my biometrics appointment at an application support center far from where I live?
- 12. What entity name and identification number should I put in the chart in Part 2 of the Form I-956H if I am involved with multiple EB-5 entities?
- Required Investment Timeframe
- 1. What is the legal basis that invested capital needs to remain invested for at least 2 years only for investors who filed an I-526 or I-526E petitions after enactment of the RIA?
- 2. How long must an investment “remain invested” for Form I-526 and I-526E petitions filed on or after March 15, 2022?
- 3. How long is the required investment timeframe for Form I-829 approval?
- 4. Can an NCE retain an investor’s capital beyond the required investment timeframe? Does the INA place a limit on how long the capital can be retained before it must be returned to the investor?
- 5. For post-RIA investors, if the required 2-year investment period ends after their Form I-526 or I-526E is filed but before it is approved, can their investment capital be returned without affecting their immigrant petition (assuming job creation and all other eligibility requirements have been met)?
- 6. For post-RIA investors, how long must their investment remain invested if they are actively in the process of creating the requisite employment under INA 216A?
- 7. How do pre-RIA direct/standalone investors sustain their investment if they are in a position to get their funds back but have not yet finished their conditional permanent resident period? On that topic, at what point does USCIS consider job creation requirements to be fulfilled for direct investors?
- Targeted Employment Areas (TEA) and Infrastructure Projects
- Application to Register Permanent Residence or Adjust Status (Form I-485)
- General Implementation
- 1. Is failing to comply with biometrics appointments a ground for denying a Form I-829 and removing conditional permanent resident status?
- 2. How should industry stakeholders, petitioners, applicants, and seekers of benefits under the immigrant visa program communicate with DHS about specific EB-5 cases or seek information that is not case-specific about the EB-5 program?
- Administrative Procedure Act (APA) Considerations with Interpretation
- 1. Why are these interpretations being announced via the USCIS website and not through notice and comment rulemaking procedures?
- 2. Are USCIS officers bound by this guidance?
- 3. How will USCIS apply these provisions and has it considered the reliance interests of, and potential retroactive impacts to, EB-5 entities and petitioners who filed or were approved prior to the RIA?
- Regional Centers
8 U.S. Code § 1153 – INA 203(b)(5) Employment creation
(A) In general
Visas shall be made available, in a number not to exceed 7.1 percent of such worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise (including a limited partnership)—
(i) in which such alien has invested (after November 29, 1990) or, is actively in the process of investing, capital in an amount not less than the amount specified in subparagraph (C) and which is expected to remain invested for not less than 2 years; and
(ii) which will benefit the United States economy by creating full-time employment for not fewer than 10 United States citizens, United States nationals, or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant’s spouse, sons, or daughters).
(B) Designations and reserved visas
(i) Reserved visas
(I) In general
Of the visas made available under this paragraph in each fiscal year—
(aa) 20 percent shall be reserved for qualified immigrants who invest in a rural area;
(bb) 10 percent shall be reserved for qualified immigrants who invest in an area designated by the Secretary of Homeland Security under clause (ii) as a high unemployment area; and
(cc) 2 percent shall be reserved for qualified immigrants who invest in infrastructure projects.
(II) Unused visas
(aa) Carryover
At the end of each fiscal year, any unused visas reserved for qualified immigrants investing in each of the categories described in items (aa) through (cc) of subclause (I) shall remain available within the same category for the immediately succeeding fiscal year.
(bb) General availability
Visas described in items (aa) through (cc) of subclause (I) that are not issued by the end of the succeeding fiscal year referred to in item (aa) shall be made available to qualified immigrants described under subparagraph (A).
(ii) Designation of high unemployment area
(I) In general
The Secretary of Homeland Security, or a designee of the Secretary who is an employee of the Department of Homeland Security, may designate, as a high unemployment area, a census tract, or contiguous census tracts, in which—
the new commercial enterprise is principally doing business; and
the weighted average of the unemployment rate for the census tracts, based on the labor force employment measure for each applicable census tract and any adjacent tract included under subclause (III), is not less than 150 percent of the national average unemployment rate.
(II) Prohibition on designation by any other official
A targeted employment area may not be designated as a high unemployment area by—
(aa) a Federal official other than the Secretary of Homeland Security or a designee of the Secretary; or
(bb) any official of a State or local government.
(III) Inclusion
In making a designation under subclause (I), the Secretary of Homeland Security may include a census tract directly adjacent to a census tract or contiguous census tracts described in that subclause.
(IV) Duration
(aa) In general
A designation under this clause shall be in effect for the 2-year period beginning on—
(AA) the date on which an application under subparagraph (F) is filed; or
(BB) in the case of an alien who is not subject to subparagraph (F), at the time of investment.
(bb) Renewal
A designation under this clause may be renewed for 1 or more additional 2-year periods if the applicable area continues to meet the criteria described in subclause (I).
(V) Additional investment not required
An immigrant investor who has invested the amount of capital required by subparagraph (C) in a targeted employment area designated as a high unemployment area during the period in which the area is so designated shall not be required to increase the amount of investment due to the expiration of the designation.
(iii) Infrastructure projects
(I) In general
The Secretary of Homeland Security shall determine whether a specific capital investment project meets the definition of “infrastructure project” set forth in subparagraph (D)(iv).
(II) Prohibition on designation by any other official
A determination under subclause (I) may not be made by—
a Federal official other than the Secretary of Homeland Security or a designee of the Secretary; or
any official of a State or local government.
(C) Amount of capital required
(i) In general
Except as otherwise provided in this subparagraph, the amount of capital required under subparagraph (A) shall be $1,050,000.
(ii) Adjustment for targeted employment areas and infrastructure projects
The amount of capital required under subparagraph (A) for an investment in a targeted employment area or in an infrastructure project shall be $800,000.
(iii) Automatic adjustment in minimum investment amount
(I) In general.—
Beginning on January 1, 2027, and every 5 years thereafter, the amount in clause (i) shall automatically adjust for petitions filed on or after the effective date of each adjustment, based on the cumulative annual percentage change in the unadjusted consumer price index for all urban consumers (all items; U.S. city average) reported by the Bureau of Labor Statistics between January 1, 2022, and the date of adjustment. The qualifying investment amounts shall be rounded down to the nearest $50,000. The Secretary of Homeland Security shall update such amounts by publication of a technical amendment in the Federal Register.
Beginning on January 1, 2027, and every 5 years thereafter, the amount in clause (ii) shall automatically adjust for petitions filed on or after the effective date of each adjustment, to be equal to 75 percent of the standard investment amount under subclause (I).
(iv) Adjustment for high employment areas
In the case of an investment made in a part of a metropolitan statistical area that at the time of the investment—
is not a targeted employment area, and
is an area with an unemployment rate significantly below the national average unemployment rate,
the Secretary of Homeland Security may specify an amount of capital required under subparagraph (A) that is greater than (but not greater than 3 times) the amount specified in clause (i), as adjusted under clause (iii).
(D) Definitions
In this paragraph:
(i) Affiliated job-creating entity
The term “affiliated job-creating entity” means any job-creating entity that is controlled, managed, or owned by any of the people involved with the regional center or new commercial enterprise under subsection (b)(5)(H)(v).
(ii) Capital
The term “capital”—
means cash and all real, personal, or mixed tangible assets owned and controlled by the alien investor, or held in trust for the benefit of the alien and to which the alien has unrestricted access;
shall be valued at fair market value in United States dollars, in accordance with Generally Accepted Accounting Principles or other standard accounting practice adopted by the Securities and Exchange Commission, at the time it is invested under this paragraph;
assets directly or indirectly acquired by unlawful means, including any cash proceeds of indebtedness secured by such assets;
capital invested in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the alien investor and the new commercial enterprise;
capital invested with a guaranteed rate of return on the amount invested by the alien investor; or
except as provided in subclause (IV), capital invested that is subject to any agreement between the alien investor and the new commercial enterprise that provides the investor with a contractual right to repayment, such as a mandatory redemption at a certain time or upon the occurrence of a certain event, or a put or sell-back option held by the alien investor, even if such contractual right is contingent on the success of the new commercial enterprise, such as having sufficient available cash flow; and
(IV) includes capital invested that—
is subject to a buy back option that may be exercised solely at the discretion of the new commercial enterprise; and
results in the alien investor withdrawing his or her petition unless the alien investor has fulfilled his or her sustainment period and other requirements under this paragraph.
(iii) Certifier
The term “certifier” means a person in a position of substantive authority for the management or operations of a regional center, new commercial enterprise, affiliated job-creating entity, or issuer of securities, such as a principal executive officer or principal financial officer, with knowledge of such entities’ policies and procedures related to compliance with the requirements under this paragraph.
(iv) Infrastructure project
The term “infrastructure project” means a capital investment project in a filed or approved business plan, which is administered by a governmental entity (such as a Federal, State, or local agency or authority) that is the job-creating entity contracting with a regional center or new commercial enterprise to receive capital investment under the regional center program described in subparagraph (E) from alien investors or the new commercial enterprise as financing for maintaining, improving, or constructing a public works project.
(v) Job-creating entity
The term “job-creating entity” means any organization formed in the United States for the ongoing conduct of lawful business, including sole proprietorship, partnership (whether limited or general), corporation, limited liability company, business trust, or other entity, which may be publicly or privately owned, including an entity consisting of a holding company and its wholly owned subsidiaries or affiliates (provided that each subsidiary or affiliate is engaged in an activity formed for the ongoing conduct of a lawful business) that receives, or is established to receive, capital investment from alien investors or a new commercial enterprise under the regional center program described in this subparagraph and which is responsible for creating jobs to satisfy the requirement under subparagraph (A)(ii).
(vi) New commercial enterprise
The term “new commercial enterprise” means any for-profit organization formed in the United States for the ongoing conduct of lawful business, including sole proprietorship, partnership (whether limited or general), holding company and its wholly owned subsidiaries (provided that each subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business), joint venture, corporation, business trust, limited liability company, or other entity (which may be publicly or privately owned) that receives, or is established to receive, capital investment from investors under this paragraph.
(vii) Rural area
The term “rural area” means any area other than an area within a metropolitan statistical area (as designated by the Director of the Office of Management and Budget) or within the outer boundary of any city or town having a population of 20,000 or more (based on the most recent decennial census of the United States).
(viii) Targeted employment area
The term “targeted employment area” means, at the time of investment, a rural area or an area designated by the Secretary of Homeland Security under subparagraph (B)(ii) as a high unemployment area.
(E) Regional center program
(i) In general
Visas under this subparagraph shall be made available through September 30, 2027, to qualified immigrants (and the eligible spouses and children of such immigrants) pooling their investments with 1 or more qualified immigrants participating in a program implementing this paragraph that involves a regional center in the United States, which has been designated by the Secretary of Homeland Security on the basis of a proposal for the promotion of economic growth, including prospective job creation and increased domestic capital investment.
(ii) Processing
In processing petitions under section 1154(a)(1)(H) of this title for classification under this paragraph, the Secretary of Homeland Security—
shall prioritize the processing and adjudication of petitions for rural areas;
may process petitions in a manner and order established by the Secretary; and
shall deem such petitions to include records previously filed with the Secretary pursuant to subparagraph (F) if the alien petitioner certifies that such records are incorporated by reference into the alien’s petition.
(iii) Establishment of a regional center
A regional center shall operate within a defined, contiguous, and limited geographic area, which shall be described in the proposal and be consistent with the purpose of concentrating pooled investment within such area. The proposal to establish a regional center shall demonstrate that the pooled investment will have a substantive economic impact on such geographic area, and shall include—
reasonable predictions, supported by economically and statistically valid and transparent forecasting tools, concerning the amount of investment that will be pooled, the kinds of commercial enterprises that will receive such investments, details of the jobs that will be created directly or indirectly as a result of such investments, and other positive economic effects such investments will have;
(II) a description of the policies and procedures in place reasonably designed to monitor new commercial enterprises and any associated job-creating entity to seek to ensure compliance with—
all applicable laws, regulations, and Executive orders of the United States, including immigration laws, criminal laws, and securities laws; and
all securities laws of each State in which securities offerings will be conducted, investment advice will be rendered, or the offerors or offerees reside;
attestations and information confirming that all persons involved with the regional center meet the requirements under clauses (i) and (ii) of subparagraph (H);
a description of the policies and procedures in place that are reasonably designed to ensure program compliance; and
the identities of all natural persons involved in the regional center, as described in subparagraph (H)(v).
(iv) Indirect job creation
(I) In general
The Secretary of Homeland Security shall permit aliens seeking admission under this subparagraph to satisfy only up to 90 percent of the requirement under subparagraph (A)(ii) with jobs that are estimated to be created indirectly through investment under this paragraph in accordance with this subparagraph. An employee of the new commercial enterprise or job-creating entity may be considered to hold a job that has been directly created.
(II) Construction activity lasting less than 2 years
If the jobs estimated to be created are created by construction activity lasting less than 2 years, the Secretary shall permit aliens seeking admission under this subparagraph to satisfy only up to 75 percent of the requirement under subparagraph (A)(ii) with jobs that are estimated to be created indirectly through investment under this paragraph in accordance with this subparagraph.
(v) Compliance
(I) In general
In determining compliance with subparagraph (A)(ii), the Secretary of Homeland Security shall permit aliens seeking admission under this subparagraph to rely on economically and statistically valid methodologies for determining the number of jobs created by the program, including—
jobs estimated to have been created directly, which may be verified using such methodologies; and
consistent with this subparagraph, jobs estimated to have been directly or indirectly created through capital expenditures, revenues generated from increased exports, improved regional productivity, job creation, and increased domestic capital investment resulting from the program.
(II) Job and investment requirements
(aa) Relocated jobs
In determining compliance with the job creation requirement under subparagraph (A)(ii), the Secretary of Homeland Security may include jobs estimated to be created under a methodology that attributes jobs to prospective tenants occupying commercial real estate created or improved by capital investments if the number of such jobs estimated to be created has been determined by an economically and statistically valid methodology and such jobs are not existing jobs that have been relocated.
(bb) Publicly available bonds
The Secretary of Homeland Security shall prescribe regulations to ensure that alien investor capital may not be utilized, by a new commercial enterprise or otherwise, to purchase municipal bonds or any other bonds, if such bonds are available to the general public, either as part of a primary offering or from a secondary market.
(cc) Construction activity jobs
If the number of direct jobs estimated to be created has been determined by an economically and statistically valid methodology, and such direct jobs are created by construction activity lasting less than 2 years, the number of such jobs that may be considered direct jobs for purposes of clause (iv) shall be calculated by multiplying the total number of such jobs estimated to be created by the fraction of the 2-year period that the construction activity lasts.
(vi) Amendments
The Secretary of Homeland Security shall—
(I) require a regional center—
to notify the Secretary, not later than 120 days before the implementation of significant proposed changes to its organizational structure, ownership, or administration, including the sale of such center, or other arrangements which would result in individuals not previously subject to the requirements under subparagraph (H) becoming involved with the regional center; or
if exigent circumstances are present, to provide the notice described in item (aa) to the Secretary not later than 5 business days after a change described in such item; and
(II) adjudicate business plans under subparagraph (F)
and petitions under section 1154(a)(1)(H) of this title during any notice period as long as the amendment to the business or petition does not negatively impact program eligibility.
(vii) Record keeping and audits
(I) Record keeping
Each regional center shall make and preserve, during the 5-year period beginning on the last day of the Federal fiscal year in which any transactions occurred, books, ledgers, records, and other documentation from the regional center, new commercial enterprise, or job-creating entity used to support—
(aa) any claims, evidence, or certifications contained in the regional center’s annual statements under subparagraph (G); and
associated petitions by aliens seeking classification under this section or removal of conditions under section 1186b of this title.
(II) Audits
The Secretary shall audit each regional center not less frequently than once every 5 years. Each such audit shall include a review of any documentation required to be maintained under subclause (I) for the preceding 5 years and a review of the flow of alien investor capital into any capital investment project. To the extent multiple regional centers are located at a single site, the Secretary may audit multiple regional centers in a single site visit.
(III) Termination
The Secretary shall terminate the designation of a regional center that fails to consent to an audit under subclause (II) or deliberately attempts to impede such an audit.
(F) Business plans for regional center investments
(i) Application for approval of an investment in a commercial enterprise
A regional center shall file an application with the Secretary of Homeland Security for each particular investment offering through an associated new commercial enterprise before any alien files a petition for classification under this paragraph by reason of investment in that offering. The application shall include—
(I) a comprehensive business plan
for a specific capital investment project;
(II) a credible economic analysis
regarding estimated job creation that is based upon economically and statistically valid and transparent methodologies;
(III) any documents filed with the Securities and Exchange Commission
under the Securities Act of 1933 (15 U.S.C. 77a et seq.) or with the securities regulator of any State, as required by law;
(IV) any investment and offering documents,
including subscription, investment, partnership, and operating agreements, private placement memoranda, term sheets, biographies of management, officers, directors, and any person with similar responsibilities, the description of the business plan to be provided to potential alien investors, and marketing materials used, or drafts prepared for use, in connection with the offering, which shall contain references, as appropriate, to—
(aa) all material investment risks associated with the new commercial enterprise and the job-creating entity;
(bb) any conflicts of interest that currently exist or may arise among the regional center, the new commercial enterprise, the job-creating entity, or the principals, attorneys, or individuals responsible for recruitment or promotion of such entities;
(cc) any pending material litigation or bankruptcy, or material adverse judgments or bankruptcy orders issued during the most recent 10-year period, in the United States or in another country, affecting the regional center, the new commercial enterprise, any associated job-creating entity, or any other enterprise in which any principal of any of the aforementioned entities held majority ownership at the time; and
any fees, ongoing interest, or other compensation paid, or to be paid by the regional center, the new commercial enterprise, or any issuer of securities intended to be offered to alien investors, to agents, finders, or broker dealers involved in the offering of securities to alien investors in connection with the investment;
a description of the services performed, or that will be performed, by such person to entitle the person to such fees, interest, or compensation; and
the name and contact information of any such person, if known at the time of filing;
(V) a description of the policies and procedures,
such as those related to internal and external due diligence, reasonably designed to cause the regional center and any issuer of securities intended to be offered to alien investors in connection with the relevant capital investment project, to comply, as applicable, with the securities laws of the United States and the laws of the applicable States in connection with the offer, purchase, or sale of its securities; and
(VI) a certification from the regional center,
and any issuer of securities intended to be offered to alien investors in connection with the relevant capital investment project, that their respective agents and employees, and any parties associated with the regional center and such issuer of securities affiliated with the regional center are in compliance with the securities laws of the United States and the laws of the applicable States in connection with the offer, purchase, or sale of its securities, to the best of the certifier’s knowledge, after a due diligence investigation.
(ii) Effect of approval of a business plan for an investment in a regional center’s commercial enterprise
The approval of an application under this subparagraph, including an approval before the date of the enactment of this subparagraph, shall be binding for purposes of the adjudication of subsequent petitions seeking classification under this paragraph by immigrants investing in the same offering described in such application, and of petitions by the same immigrants filed under section 1186b of this title unless—
the applicant engaged in fraud, misrepresentation, or criminal misuse;
such approval would threaten public safety or national security;
there has been a material change that affects eligibility;
the discovery of other evidence affecting program eligibility was not disclosed by the applicant during the adjudication process; or
the previous adjudication involved a material mistake of law or fact.
(iii) Amendments
(I) Approval
The Secretary of Homeland Security may establish procedures by which a regional center may seek approval of an amendment to an approved application under this subparagraph that reflects changes specified by the Secretary to any information, documents, or other aspects of the investment offering described in such approved application not later than 30 days after any such changes.
(II) Incorporation
Upon the approval of a timely filed amendment to an approved application, any changes reflected in such amendment may be incorporated into and considered in determining program eligibility through adjudication of—
pending petitions from immigrants investing in the offering described in the approved application who are seeking classification under this paragraph; and
petitions by immigrants described in item (aa) that are filed under section 1186b of this title.
(iv) Site visits
The Secretary of Homeland Security shall—
(I) perform site visits to regional centers not earlier than 24 hours after providing notice of such site visit; and
(II) perform at least 1 site visit to, as applicable, each new commercial enterprise or job-creating entity, or the business locations where any jobs that are claimed as being created.
(v) Parameters for capital redeployment
(I) In general
The Secretary of Homeland Security shall prescribe regulations, in accordance with subchapter II of chapter 5 and chapter 7 of title 5 (commonly known as the “Administrative Procedure Act”), that allow a new commercial enterprise to redeploy investment funds anywhere within the United States or its territories for the purpose of maintaining the investors’ capital at risk if—
(aa) the new commercial enterprise has executed the business plan for a capital investment project in good faith without a material change;
(bb) the new commercial enterprise has created a sufficient number of new full time positions to satisfy the job creation requirements of the program for all investors in the new commercial enterprise, either directly or indirectly, as evidenced by the methodologies set forth in this chapter;
(cc) the job creating entity has repaid the capital initially deployed in conformity with the initial investment contemplated by the business plan; and
(dd) the capital, after repayment by the job creating entity, remains at risk and it is not redeployed in passive investments, such as stocks or bonds.
(II) Termination
The Secretary of Homeland Security shall terminate the designation of a regional center if the Secretary determines that a new commercial enterprise has violated any of the requirements under subclause (I) in the redeployment of funds invested in such regional center.
(G) Regional center annual statements
(i) In general
Each regional center designated under subparagraph (E) shall submit an annual statement, in a manner prescribed by the Secretary of Homeland Security. Each such statement shall include—
a certification stating that, to the best of the certifier’s knowledge, after a due diligence investigation, the regional center is in compliance with clauses (i) and (ii) of subparagraph (H);
a certification described in subparagraph (I)(ii)(II);
a certification stating that, to the best of the certifier’s knowledge, after a due diligence investigation, the regional center is in compliance with subparagraph (K)(iii);
a description of any pending material litigation or bankruptcy proceedings, or material litigation or bankruptcy proceedings resolved during the preceding fiscal year, involving the regional center, the new commercial enterprise, or any affiliated job-creating entity;
an accounting of all individual alien investor capital invested in the regional center, new commercial enterprise, and job-creating entity;
(VI) for each new commercial enterprise associated with the regional center—
an accounting of the aggregate capital invested in the new commercial enterprise and any job-creating entity by alien investors under this paragraph for each capital investment project being undertaken by the new commercial enterprise;
a description of how the capital described in item (aa) is being used to execute each capital investment project in the filed business plan or plans;
evidence that 100 percent of the capital described in item (aa) has been committed to each capital investment project;
detailed evidence of the progress made toward the completion of each capital investment project;
an accounting of the aggregate direct jobs created or preserved;
(ff) to the best of the regional center’s knowledge, for all fees, including administrative fees, loan monitoring fees, loan management fees, commissions and similar transaction-based compensation, collected from alien investors by the regional center, the new commercial enterprise, any affiliated job-creating entity, any affiliated issuer of securities intended to be offered to alien investors, or any promoter, finder, broker-dealer, or other entity engaged by any of the aforementioned entities to locate individual investors—
a description of all fees collected;
an accounting of the entities that received such fees; and
the purpose for which such fees were collected;
any documentation referred to in subparagraph (F)(i)(IV) if there has been a material change during the preceding fiscal year; and
a certification by the regional center that the information provided under items (aa) through (gg) is accurate, to the best of the certifier’s knowledge, after a due diligence investigation; and
a description of the regional center’s policies and procedures that are designed to enable the regional center to comply with applicable Federal labor laws.
(ii) Amendment of annual statements
The Secretary of Homeland Security—
shall require the regional center to amend or supplement an annual statement required under clause (i) if the Secretary determines that such statement is deficient; and
may require the regional center to amend or supplement such annual statement if the Director determines that such an amendment or supplement is appropriate.
(iii) Sanctions
(I) Effect of violation
The Director shall sanction any regional center entity in accordance with subclause (II) if the regional center fails to submit an annual statement or if the Director determines that the regional center—
knowingly submitted or caused to be submitted a statement, certification, or any information submitted pursuant to this subparagraph that contained an untrue statement of material fact; or
is conducting itself in a manner inconsistent with its designation under subparagraph (E), including any willful, undisclosed, and material deviation by new commercial enterprises from any filed business plan for such new commercial enterprises.
(II) Authorized sanctions
The Director shall establish a graduated set of sanctions based on the severity of the violations referred to in subclause (I), including—
fines equal to not more than 10 percent of the total capital invested by alien investors in the regional center’s new commercial enterprises or job-creating entities directly involved in such violations, the payment of which shall not in any circumstance utilize any of such alien investors’ capital investments, and which shall be deposited into the EB–5 Integrity Fund established under subparagraph (J);
temporary suspension from participation in the program described in subparagraph (E), which may be lifted by the Director if the individual or entity cures the alleged violation after being provided such an opportunity by the Director;
permanent bar from participation in the program described in subparagraph (E) for 1 or more individuals or business entities associated with the regional center, new commercial enterprise, or job-creating entity; and
termination of regional center designation.
(iv) Availability of annual statements to investors
Not later than 30 days after a request from an alien investor, a regional center shall make available to such alien investor a copy of the filed annual statement and any amendments filed to such statement, which shall be redacted to exclude any information unrelated to such alien investor or the new commercial enterprise or job creating entity into which the alien investor invested.
(H) Bona fides of persons involved with regional center program
(i) In general
The Secretary of Homeland Security may not permit any person to be involved with any regional center, new commercial enterprise, or job-creating entity if—
(I) the person has been found to have committed—
a criminal or civil offense involving fraud or deceit within the previous 10 years;
a civil offense involving fraud or deceit that resulted in a liability in excess of $1,000,000; or
a crime for which the person was convicted and sentenced to a term of imprisonment of more than 1 year;
(II) the person is subject to a final order, for the duration of any penalty imposed by such order, of a State securities commission (or an agency or officer of a State performing similar functions), a State authority that supervises or examines banks, savings associations, or credit unions, a State insurance commission (or an agency or officer of a State performing similar functions), an appropriate Federal banking agency, the Commodity Futures Trading Commission, the Securities and Exchange Commission, a financial self-regulatory organization recognized by the Securities and Exchange Commission, or the National Credit Union Administration, which is based on a violation of any law or regulation that—
prohibits fraudulent, manipulative, or deceptive conduct; or
association with an entity regulated by such commission, authority, agency, or officer;
appearing before such commission, authority, agency, or officer;
engaging in the business of securities, insurance, or banking; or
engaging in savings association or credit union activities;
(III) the Secretary determines that the person is engaged in, has ever been engaged in, or seeks to engage in—
any illicit trafficking in any controlled substance or in any listed chemical (as defined in section 802 of title 21);
any activity relating to espionage, sabotage, or theft of intellectual property;
any activity related to money laundering (as described in section 1956 or 1957 of title 18);
any terrorist activity (as defined in section 1182(a)(3)(B) of this title);
any activity constituting or facilitating human trafficking or a human rights offense;
any activity described in section 1182(a)(3)(E) of this title; or
the violation of any statute, regulation, or Executive order regarding foreign financial transactions or foreign asset control; or
is, or during the preceding 10 years has been, included on the Department of Justice’s List of Currently Disciplined Practitioners; or
during the preceding 10 years, has received a reprimand or has otherwise been publicly disciplined for conduct related to fraud or deceit by a State bar association of which the person is or was a member.
(ii) Foreign involvement in regional center program
(I) Lawful status required
A person may not be involved with a regional center unless the person—
is a national of the United States or an individual who has been lawfully admitted for permanent residence (as such terms are defined in paragraphs (20) and (22) of section 1101(a) of this title); and
is not the subject of rescission or removal proceedings.
(II) Foreign governments
No agency, official, or other similar entity or representative of a foreign government entity may provide capital to, or be directly or indirectly involved with the ownership or administration of, a regional center, a new commercial enterprise, or a job-creating entity, except that a foreign or domestic investment fund or other investment vehicle that is wholly or partially owned, directly or indirectly, by a bona fide foreign sovereign wealth fund or a foreign state-owned enterprise otherwise permitted to do business in the United States may be involved with the ownership, but not the administration, of a job-creating entity that is not an affiliated job-creating entity.
(III) Rulemaking
Not later than 270 days after March 15, 2022, the Secretary shall issue regulations implementing subparagraphs (I) and (II).
(iii) Information required
The Secretary of Homeland Security—
shall require such attestations and information, including the submission of fingerprints or other biometrics to the Federal Bureau of Investigation with respect to a regional center, a new commercial enterprise, and any affiliated job creating entity, and persons involved with such entities (as described in clause (v)), as may be necessary to determine whether such entities are in compliance with clauses (i) and (ii);
shall perform such criminal record checks and other background and database checks with respect to a regional center, a new commercial enterprise, and any affiliated job-creating entity, and persons involved with such entities (as described in clause (v)), as may be necessary to determine whether such entities are in compliance with clauses (i) and (ii); and
may, at the Secretary’s discretion, require the information described to in subclause (I) and may perform the checks described in subclause (II) with respect to any job creating entity and persons involved with such entity if there is a reasonable basis to believe such entity or person is not in compliance with clauses (i) and (ii).
(iv) Termination
(I) In general
The Secretary of Homeland Security may suspend or terminate the designation of any regional center, or the participation under the program of any new commercial enterprise or job-creating entity under this paragraph if the Secretary determines that such entity—
(aa) knowingly involved a person with such entity in violation of clause (i) or (ii) by failing, within 14 days of acquiring such knowledge—
to take commercially reasonable efforts to discontinue the prohibited person’s involvement; or
to provide notice to the Secretary;
failed to provide an attestation or information requested by the Secretary under clause (iii)(I); or
knowingly provided any false attestation or information under clause (iii)(I).
(II) Limitation
The Secretary’s authorized sanctions under subclause (I) shall be limited to entities that have engaged in any activity described in subclause (I).
(III) Information
(aa) Notification
The Secretary, after performing the criminal record checks and other background checks described in clause (iii), shall notify a regional center, new commercial enterprise, or job-creating entity whether any person involved with such entities is not in compliance with clause (i) or (ii), unless the information that provides the basis for the determination is classified or disclosure is otherwise prohibited under law.
(bb) Effect of failure to respond
If the regional center, new commercial enterprise, or job-creating entity fails to discontinue the prohibited person’s involvement with the regional center, new commercial enterprise, or job-creating entity, as applicable, within 30 days after receiving such notification, such entity shall be deemed to have knowledge under subclause (I)(aa) that the involvement of such person with the entity is in violation of clause (i) or (ii).
(v) Persons involved with a regional center, new commercial enterprise, or job-creating entity
For the purposes of this paragraph, unless otherwise determined by the Secretary of Homeland Security, a person is involved with a regional center, a new commercial enterprise, any affiliated job-creating entity, as applicable, if the person is, directly or indirectly, in a position of substantive authority to make operational or managerial decisions over pooling, securitization, investment, release, acceptance, or control or use of any funding that was procured under the program described in subparagraph (E). An individual may be in a position of substantive authority if the person serves as a principal, a representative, an administrator, an owner, an officer, a board member, a manager, an executive, a general partner, a fiduciary, an agent, or in a similar position at the regional center, new commercial enterprise, or job-creating entity, respectively.
(I) Compliance with securities laws
(i) Jurisdiction
(I) In general
The United States has jurisdiction, including subject matter jurisdiction, over the purchase or sale of any security offered or sold, or any investment advice provided, by any regional center or any party associated with a regional center for purposes of the securities laws.
(II) Compliance with regulation s
For purposes of section 5 of the Securities Act of 1933 (15 U.S.C. 77e), a regional center or any party associated with a regional center is not precluded from offering or selling a security pursuant to Regulation S (17 C.F.R. 230.901 et seq.) to the extent that such offering or selling otherwise complies with that regulation.
(III) Savings provision
Subclause (I) is not intended to modify any existing rules or regulations of the Securities and Exchange Commission related to the application of section 78o(a) of title 15 to foreign brokers or dealers.
(ii) Regional center certifications required
(I) Initial certification
The Secretary of Homeland Security may not approve an application for regional center designation or regional center amendment unless the regional center certifies that, to the best of the certifier’s knowledge, after a due diligence investigation, the regional center is in compliance with and has policies and procedures, including those related to internal and external due diligence, reasonably designed to confirm, as applicable, that all parties associated with the regional center are and will remain in compliance with the securities laws of the United States and of any State in which—
the offer, purchase, or sale of securities was conducted;
the issuer of securities was located; or
the investment advice was provided by the regional center or parties associated with the regional center.
(II) Reissue
A regional center shall annually reissue a certification described in subclause (I), in accordance with subparagraph (G), to certify compliance with clause (iii) by stating that—
the certification is made by a certifier;
(bb) to the best of the certifier’s knowledge, after a due diligence investigation, all such offers, purchases, and sales of securities or the provision of investment advice complied with the securities laws of the United States and the securities laws of any State in which—
the offer, purchase, or sale of securities was conducted;
the issuer of securities was located; or
the investment advice was provided; and
records, data, and information related to such offers, purchases, and sales have been maintained.
(III) Effect of noncompliance
If a regional center, through its due diligence, discovered during the previous fiscal year that the regional center or any party associated with the regional center was not in compliance with the securities laws of the United States or the securities laws of any State in which the securities activities were conducted by any party associated with the regional center, the certifier shall—
describe the activities that led to noncompliance;
describe the actions taken to remedy the noncompliance; and
certify that the regional center and all parties associated with the regional center are currently in compliance, to the best of the certifier’s knowledge, after a due diligence investigation.
(iii) Oversight required
Each regional center shall—
use commercially reasonable efforts to monitor and supervise compliance with the securities laws in relations to all offers, purchases, and sales of, and investment advice relating to, securities made by parties associated with the regional center;
maintain records, data, and information relating to all such offers, purchases, sales, and investment advice during the 5-year period beginning on the date of their creation; and
make the records, data, and information described in subclause (II) available to the Secretary or to the Securities and Exchange Commission upon request.
(iv) Suspension or termination
In addition to any other authority provided to the Secretary under this paragraph, the Secretary, in the Secretary’s discretion, may suspend or terminate the designation of any regional center or impose other sanctions against the regional center if the regional center, or any parties associated with the regional center that the regional center knew or reasonably should have known—
are permanently or temporarily enjoined by order, judgment, or decree of any court of competent jurisdiction in connection with the offer, purchase, or sale of a security or the provision of investment advice;
(II) are subject to any final order of the Securities and Exchange Commission or a State securities regulator that—
bars such person from association with an entity regulated by the Securities and Exchange Commission or a State securities regulator; or
constitutes a final order based on a finding of an intentional violation or a violation related to fraud or deceit in connection with the offer, purchase, or sale of, or investment advice relating to, a security; or
submitted, or caused to be submitted, a certification described in clause (ii) that contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.
(v) Defined term
In this subparagraph, the term “parties associated with a regional center” means—
the regional center;
any new commercial enterprise or affiliated job-creating entity or issuer of securities associated with the regional center;
the regional center’s and new commercial enterprise’s owners, officers, directors, managers, partners, agents, employees, promoters and attorneys, or similar position, as determined by the Secretary; and
any person under the control of the regional center, new commercial enterprise, or issuer of securities associated with the regional center who is responsible for the marketing, offering, or sale of any security offered in connection with the capital investment project.
(vi) Savings provision
Nothing in this subparagraph may be construed to impair or limit the authority of the Securities and Exchange Commission under the Federal securities laws or any State securities regulator under State securities laws.
(J) EB–5 Integrity Fund
(i) Establishment
There is established in the United States Treasury a special fund, which shall be known as the “EB–5 Integrity Fund” (referred to in this subparagraph as the “Fund”). Amounts deposited into the Fund shall be available to the Secretary of Homeland Security until expended for the purposes set forth in clause (iii).
(ii) Fees
(I) Annual fee
On October 1, 2022, and each October 1 thereafter, the Secretary of Homeland Security shall collect for the Fund an annual fee—
(aa) except as provided in item (bb), of $20,000 from each regional center designated under subparagraph (E); and
(bb) of $10,000 from each such regional center with 20 or fewer total investors in the preceding fiscal year in its new commercial enterprises.
(II) Petition fee
Beginning on October 1, 2022, the Secretary shall collect a fee of $1,000 for the Fund with each petition filed under section 1154(a)(1)(H) of this title for classification under subparagraph (E). The fee under this subclause is in addition to the fee that the Secretary is authorized to establish and collect for each petition to recover the costs of adjudication and naturalization services under section 1356(m) of this title.
(III) Increases
The Secretary may increase the amounts under this clause by prescribing such regulations as may be necessary to ensure that amounts in the Fund are sufficient to carry out the purposes set forth in clause (iii).
(iii) Permissible uses of fund
The Secretary shall—
(I) use not less than ⅓ of the amounts deposited into the Fund for investigations based outside of the United States, including—
monitoring and investigating program-related events and promotional activities; and
ensuring an alien investor’s compliance with subparagraph (L); and
(II) use amounts deposited into the Fund—
to detect and investigate fraud or other crimes;
to determine whether regional centers, new commercial enterprises, job-creating entities, and alien investors (and their alien spouses and alien children) comply with the immigration laws;
to conduct audits and site visits; and
as the Secretary determines to be necessary, including monitoring compliance with the requirements under section 1153a of this title.
(iv) Failure to pay fee
The Secretary of Homeland Security shall—
impose a reasonable penalty, which shall be deposited into the Fund, if any regional center does not pay the fee required under clause (ii) within 30 days after the date on which such fee is due; and
terminate the designation of any regional center that does not pay the fee required under clause (ii) within 90 days after the date on which such fee is due.
(v) Report
The Secretary shall submit an annual report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that describes how amounts in the Fund were expended during the previous fiscal year.
(K) Direct and third-party promoters
(i) Rules and standards
Direct and third-party promoters (including migration agents) of a regional center, any new commercial enterprise, an affiliated job-creating entity, or an issuer of securities intended to be offered to alien investors in connection with a particular capital investment project shall comply with the rules and standards prescribed by the Secretary of Homeland Security and any applicable Federal or State securities laws, to oversee promotion of any offering of securities related to the EB–5 Program, including—
(I) registration with U.S. Citizenship and Immigration Services, which—
includes identifying and contact information for such promoter and confirmation of the existence of the written agreement required under clause (iii); and
may be made publicly available at the discretion of the Secretary;
certification by each promoter that such promoter is not ineligible under subparagraph (H)(i);
guidelines for accurately representing the visa process to foreign investors; and
guidelines describing permissible fee arrangements under applicable securities and immigration laws.
(ii) Effect of violation
If the Secretary determines that a direct or third-party promoter has violated clause (i), the Secretary shall suspend or permanently bar such individual from participation in the program described in subparagraph (E).
(iii) Compliance
Each regional center, new commercial enterprise, and affiliated job-creating entity shall maintain a written agreement between or among such entities and each direct or third-party promoter operating on behalf of such entities that outlines the rules and standards prescribed under clause (i).
(iv) Disclosure
Each petition filed under section 1154(a)(1)(H) of this title shall include a disclosure, signed by the investor, that reflects all fees, ongoing interest, and other compensation paid to any person that the regional center or new commercial enterprise knows has received, or will receive, in connection with the investment, including compensation to agents, finders, or broker dealers involved in the offering, to the extent not already specifically identified in the business plan filed under subparagraph (F).
(L) Source of funds
(i) In general
An alien investor shall demonstrate that the capital required under subparagraph (A) and any funds used to pay administrative costs and fees associated with the alien’s investment were obtained from a lawful source and through lawful means.
(ii) Required information
The Secretary of Homeland Security shall require that an alien investor’s petition under this paragraph contain, as applicable—
(I) business and tax records, or similar records, including—
foreign business registration records;
corporate or partnership tax returns (or tax returns of any other entity in any form filed in any country or subdivision of such country), and personal tax returns, including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind, filed during the past 7 years (or another period to be determined by the Secretary to ensure that the investment is obtained from a lawful source of funds) with any taxing jurisdiction within or outside the United States by or on behalf of the alien investor; and
any other evidence identifying any other source of capital or administrative fees;
evidence related to monetary judgments against the alien investor, including certified copies of any judgments, and evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving possible monetary judgments against the alien investor from any court within or outside the United States; and
the identity of all persons who transfer into the United States, on behalf of the investor, any funds that are used to meet the capital requirement under subparagraph (A).
(iii) Gift and loan restrictions
(I) In general Gifted and borrowed funds may not be counted toward the minimum capital investment requirement under subparagraph (C) unless such funds—
were gifted or loaned to the alien investor in good faith; and
were not gifted or loaned to circumvent any limitations imposed on permissible sources of capital under this subparagraph, including but not limited to proceeds from illegal activity.
If funds invested under subparagraph (A) are gifted or loaned to the alien investor, the Secretary shall require that the alien investor’s petition under this paragraph includes the records described in subclauses (I) and (II) of clause (ii) from the donor or, if other than a bank, the lender.
(M) Treatment of good faith investors following program noncompliance
(i) Termination or debarment of EB–5 entity
Except as provided in clause (vi), upon the termination or debarment, as applicable, from the program under this paragraph of a regional center, a new commercial enterprise, or a job-creating entity—
an otherwise qualified petition under section 1154(a)(1)(H) of this title or the conditional permanent residence of an alien who has been admitted to the United States pursuant to section 1186b(a)(1) of this title based on an investment in a terminated regional center, new commercial enterprise, or job-creating entity shall remain valid or continue to be authorized, as applicable, consistent with this subparagraph; and
the Secretary of Homeland Security shall notify the alien beneficiaries of such petitions of such termination or debarment.
(ii) New regional center or investment
The petition under section 1154(a)(1)(H) of this title of an alien described in clause (i) and the conditional permanent resident status of an alien described in clause (i) shall be terminated 180 days after notification of the termination from the program under this paragraph of a regional center, a new commercial enterprise, or a job creating entity (but not sooner than 180 days after March 15, 2022) unless—
(I) in the case of the termination of a regional center—
the new commercial enterprise associates with an approved regional center, regardless of the approved geographical boundaries of such regional center’s designation; or
such alien makes a qualifying investment in another new commercial enterprise; or
(II) in the case of the debarment of
a new commercial enterprise or job-creating entity, such alien—
associates with a new commercial enterprise in good standing; and
invests additional investment capital solely to the extent necessary to satisfy remaining job creation requirements under subparagraph (A)(ii).
(iii) Amendments
(I) Filing requirement
The Secretary shall permit a petition described in clause (i)(I) to be amended to allow such petition to meet the applicable eligibility requirements under clause (ii), or to notify the Secretary that a pending or approved petition continues to meet the eligibility requirements described in clause (ii) notwithstanding termination or debarment described in clause (i) if such amendment is filed not later than 180 days after the Secretary provides notification of termination or debarment of a regional center, a new commercial enterprise, or a job-creating entity, as applicable.
(II) Determination of eligibility
For purposes of determining eligibility under subclause (I)—
(aa) the Secretary shall permit amendments to the business plan, without such facts underlying the amendment being deemed a material change; and
(bb) may deem any funds obtained or recovered by an alien investor, directly or indirectly, from claims against third parties, including insurance proceeds, or any additional investment capital provided by the alien, to be such alien’s investment capital for the purposes of subparagraph (A) if such investment otherwise complies with the requirements under this paragraph and section 1186b of this title.
(iv) Removal of conditions
Aliens described in subclauses (I)(bb) and (II) of clause (ii) shall be eligible to have their conditions removed pursuant to section 1186b of this title beginning on the date that is 2 years after the date of the subsequent investment.
(v) Remedies
For petitions approved under clause (ii), including following an amendment filed under clause (iii), the Secretary—
(I) shall retain the immigrant visa priority date related to the original petition and prevent age-out of derivative beneficiaries; and
(II) may hold such petition in abeyance and extend any applicable deadlines under this paragraph.
(vi) Exception
If the Secretary has reason to believe that an alien was a knowing participant in the conduct that led to the termination of a regional center, new commercial enterprise, or job-creating entity described in clause (i)—
(I) the alien shall not be accorded any benefit under this subparagraph; and
(aa) notify the alien of such belief; and
(bb) subject to section 1186b(b)(2) of this title, shall deny or initiate proceedings to revoke the approval of such alien’s petition, application, or benefit (and that of any spouse or child, if applicable) described in this paragraph.
(N) Threats to the national interest
(i) Denial or revocation
The Secretary of Homeland Security shall deny or revoke the approval of a petition, application, or benefit described in this paragraph, including the documents described in clause (ii), if the Secretary determines, in the Secretary’s discretion, that the approval of such petition, application, or benefit is contrary to the national interest of the United States for reasons relating to threats to public safety or national security.
(ii) Documents
The documents described in this clause are—
(I) a certification, designation, or amendment to the designation of a regional center;
(II) a petition seeking classification of an alien as an alien investor under this paragraph;
(III) a petition to remove conditions under section 1186b of this title;
(IV) an application for approval of a business plan in a new commercial enterprise under subparagraph (F); or
(V) a document evidencing conditional permanent resident status that was issued to an alien pursuant to section 1186b of this title.
(iii) Debarment
If a regional center, new commercial enterprise, or job-creating entity has its designation or participation in the program under this paragraph terminated for reasons relating to public safety or national security, any person associated with such regional center, new commercial enterprise, or job-creating entity, including an alien investor, shall be permanently barred from future participation in the program under this paragraph if the Secretary of Homeland Security, in the Secretary’s discretion, determines, by a preponderance of the evidence, that such person was a knowing participant in the conduct that led to the termination.
(iv) Notice
If the Secretary of Homeland Security determines that the approval of a petition, application, or benefit described in this paragraph should be denied or revoked pursuant to clause (i), the Secretary shall—
(I) notify the relevant individual, regional center, or commercial entity of such determination;
(II) deny or revoke such petition, application, or benefit or terminate the permanent resident status of the alien (and the alien spouse and alien children of such immigrant), as of the date of such determination; and
(III) provide any United States-owned regional center, new commercial enterprise, or job creating entity an explanation for such determination unless the relevant information is classified or disclosure is otherwise prohibited under law.
(v) Judicial review
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28 or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review a denial or revocation under this subparagraph. Nothing in this clause may be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with section 1252 of this title.
(O) Fraud, misrepresentation, and criminal misuse
(i) Denial or revocation
Subject to subparagraph (M), the Secretary of Homeland Security shall deny or revoke the approval of a petition, application, or benefit described in this paragraph, including the documents described in subparagraph (N)(ii), if the Secretary determines, in the Secretary’s discretion, that such petition, application, or benefit was predicated on or involved fraud, deceit, intentional material misrepresentation, or criminal misuse.
(ii) Debarment
If a regional center, new commercial enterprise, or job-creating entity has its designation or participation in the program under this paragraph terminated for reasons relating to fraud, intentional material misrepresentation, or criminal misuse, any person associated with such regional center, new commercial enterprise, or job-creating entity, including an alien investor, shall be permanently barred from future participation in the program if the Secretary determines, in the Secretary’s discretion, by a preponderance of the evidence, that such person was a knowing participant in the conduct that led to the termination.
(iii) Notice
If the Secretary determines that the approval of a petition, application, or benefit described in this paragraph should be denied or revoked pursuant to clause (i), the Secretary shall—
(I) notify the relevant individual, regional center, or commercial entity of such determination; and
(II) deny or revoke such petition, application, or benefit or terminate the permanent resident status of the alien (and the alien spouse and alien children of such immigrant), in accordance with clause (i), as of the date of such determination.
(P) Administrative appellate review
(i) In general
The Director of U.S. Citizenship and Immigration Services shall provide an opportunity for an administrative appellate review by the Administrative Appeals Office of U.S. Citizenship and Immigration Services of any determination made under this paragraph, including—
(I) an application for regional center designation or regional center amendment;
(II) an application for approval of a business plan filed under subparagraph (F);
(III) a petition by an alien investor for status as an immigrant under this paragraph;
(IV) the termination or suspension of any benefit accorded under this paragraph; and
(V) any sanction imposed by the Secretary under this paragraph.
(ii) Judicial review
Subject to subparagraph (N)(v) and section 1252(a)(2) of this title, and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28 or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review a determination under this paragraph until the regional center, its associated entities, or the alien investor has exhausted all administrative appeals.
(Q) Fund administration
(i) In general
Each new commercial enterprise shall deposit and maintain the capital investment of each alien investor in a separate account, including amounts held in escrow.
(ii) Use of funds
Amounts in a separate account may only—
(I) be transferred to another separate account or a job creating entity;
(II) otherwise be deployed into the capital investment project for which the funds were intended; or
(III) be transferred to the alien investor who contributed the funds as a refund of that investor’s capital investment, if otherwise permitted under this paragraph.
(iii) Deployment of funds into an affiliated job-creating entity
If amounts are transferred to an affiliated job-creating entity pursuant to clause (ii)(I)—
(I) the affiliated job-creating entity shall maintain such amounts in a separate account until they are deployed into the capital investment project for which they were intended; and
(II) not later than 30 days after such amounts are deployed pursuant to subclause (I), the affiliated job-creating entity shall provide written notice to the fund administrator retained pursuant to clause (iv) that a construction consultant or other individual authorized by the Secretary has verified that such amounts have been deployed into the project.
(iv) Fund administrator
Except as provided in clause (v), the new commercial enterprise shall retain a fund administrator to fulfill the requirements under this subparagraph. The fund administrator—
(I) shall be independent of, and not directly related to, the new commercial enterprise, the regional center associated with the new commercial enterprise, the job creating entity, or any of the principals or managers of such entities;
(II) shall be licensed, active, and in good standing as—
(aa) a certified public accountant;
(bb) an attorney;
(cc) a broker-dealer or investment adviser registered with the Securities and Exchange Commission; or
(dd) an individual or company that otherwise meets such requirements as may be established by the Secretary;
(III) shall monitor and track any transfer of amounts from the separate account;
(IV) shall serve as a cosignatory on all separate accounts;
(V) before any transfer of amounts from a separate account, shall—
(aa) verify that the transfer complies with all governing documents, including organizational, operational, and investment documents; and
(bb) approve such transfer with a written or electronic signature;
(VI) shall periodically provide each alien investor with information about the activity of the account in which the investor’s capital investment is held, including—
(aa) the name and location of the bank or financial institution at which the account is maintained;
(bb) the history of the account; and
(cc) any additional information required by the Secretary; and
(VII) shall make and preserve, during the 5-year period beginning on the last day of the Federal fiscal year in which any transactions occurred, books, ledgers, records, and other documentation necessary to comply with this clause, which shall be provided to the Secretary upon request.
(v) Waiver
(I) Waiver permitted
The Secretary of Homeland Security, after consultation with the Securities and Exchange Commission, may waive the requirements under clause (iv) for any new commercial enterprise or affiliated job-creating entity that is controlled by or under common control of an investment adviser or broker-dealer that is registered with the Securities and Exchange Commission if the Secretary, in the Secretary’s discretion, determines that the Securities and Exchange Commission provides comparable protections and transparency for alien investors as the protections and transparency provided under clause (iv).
(II) Waiver required
The Secretary of Homeland Security shall waive the requirements under clause (iv) for any new commercial enterprise that commissions an annual independent financial audit of such new commercial enterprise or job creating entity conducted in accordance with Generally Accepted Auditing Standards, which audit shall be provided to the Secretary and all investors in the new commercial enterprise.
(vi) Defined term
In this subparagraph, the term “separate account” means an account that—
(I) is maintained in the United States by a new commercial enterprise or job creating entity at a federally regulated bank or at another financial institution (as defined in section 20 of title 18) in the United States;
(II) is insured; and
(III) contains only the pooled investment funds of alien investors in a new commercial enterprise with respect to a single capital investment project.
(R) Required checks
Any petition filed by an alien under section 1154(a)(1)(H) of this title may not be approved under this paragraph unless the Secretary of Homeland Security has searched for the alien and any associated employer of such alien on the Specially Designated Nationals List of the Department of the Treasury Office of Foreign Assets Control.
(S) Protection from expired legislation
Notwithstanding the expiration of legislation authorizing the regional center program under subparagraph (E), the Secretary of Homeland Security—
shall continue processing petitions under sections 1154(a)(1)(H) and 1186b of this title based on an investment in a new commercial enterprise associated with a regional center that were filed on or before September 30, 2026;
may not deny a petition described in clause (i) based on the expiration of such legislation; and
may not suspend or terminate the allocation of visas to the beneficiaries of approved petitions described in clause (i).
USCIS EB-5 Questions and Answers (updated Oct. 2023)
Regional Centers
1. Is there a specific order for filing applications for regional center designation, applications for investment projects, and immigrant petitions for investors in regional center projects?
Yes. Before a regional center can file for approval of an investment project, the regional center must first have an approved application for designation, which includes approved designations before enactment of the EB-5 Reform and Integrity Act of 2022.
An entity seeking regional center designation must apply for such designation under the EB-5 Regional Center Program on Form I-956, Application for Regional Center Designation, with the appropriate fee. The Form I-956 application must include a Form I-956H, Bona Fides of Persons Involved with Regional Center Program, and biometric services fee, for each person involved with the regional center. On the form, each person attests, and provides information to confirm, that they are in compliance with
Once we approve the regional center’s designation application, the regional center will need to file a Form I-956F, Application for Approval of an Investment in a Commercial Enterprise, for each particular investment offering through a new commercial enterprise that the regional center intends to sponsor. A regional center that was previously designated and that is filing an amendment application to demonstrate the regional center’s eligibility for continued designation under the new statute may file an investment project application before we approve the amendment application. The Form I-956F application must include a Form I-956H and biometric services fee for each person involved with the new commercial enterprise or affiliated job-creating entity. On the form, each person attests, and provides information to confirm, that they are in compliance with program requirements.
After the regional center has properly filed a Form I-956F (but without it needing to be approved), an investor in that specific investment offering may file an individual Form I-526E, Immigrant Petition by Regional Center Investor.
2. Can pre-RIA investors retain their eligibility if their regional center is terminated?
Given the large volume of investors that could be affected by terminations of previously designated regional centers based solely on noncompliance with certain new administrative requirements added by the RIA, such as paying the annual Integrity Fund fee, we interpret the RIA in a manner we hope permits good faith investors of terminated regional centers to retain their eligibility.
To accommodate these good faith investors as envisioned by RIA, we interpret INA 203(b)(5)(M) to apply to pre-RIA investors associated with a terminated regional center (or debarred new commercial enterprise or job-creating entity). INA 203(b)(5)(m)(v)(II) authorizes the secretary of homeland security to “extend any applicable deadlines under this paragraph.” Therefore, rather than strictly applying the notification timeframes under 8 USC 1153: Allocation of immigrant visas, we will generally extend the deadline for pre-RIA investors to respond to a regional center termination notification until we adjudicate their petition. At the time of adjudication, if we need more information from the investor about eligibility, the officer may issue a request for evidence or a notice of intent to deny, giving the investor an opportunity to establish their eligibility.
To satisfy the eligibility requirements applicable to pre-RIA investors, such investors may rely on the RIA’s grandfathering provisions under Section 105(c) (which requires continued adjudication of pre-RIA petitions even before the effective date of the codification of the reformed program into the INA) for purposes of continued eligibility.
Therefore, pre-RIA investors may, in certain situations, remain eligible based on indirect jobs, as applicable to their petition before the RIA was enacted notwithstanding termination of their associated regional center. Accordingly, where regional center termination is based on purely administrative noncompliance that does not otherwise directly affect or implicate the underlying investment or job creation, officers may generally determine, in their discretion and on a case-by-case basis, that a pre-RIA investor associated with the terminated regional center continues to be eligible for classification as an immigrant investor, notwithstanding the regional center termination.
However, we do not interpret the grandfathering provision of Section 105(c) of the RIA to apply to post-RIA investors, who are subject to the new requirements added by the RIA, such as the requirement under INA 204(a)(1)(H)(ii) to remain associated with an approved project application under INA 203(b)(5)(F). This interpretation of the grandfathering provision of Sec. 105(c) accords with the statement from Sen. Chuck Grassley, one of the primary authors of the RIA, in explaining the intent of the RIA that “the bill allows petitions filed by immigrant investors under the old pilot program to continue to be adjudicated under the law as it existed when they were filed.” 168 Cong. Rec. S1105 (daily ed. March 10, 2022).
3. Do regional centers that properly filed the Forms I-956 and/or I-956G versions in effect on the filing date need to refile any new form published after the date they filed?
Regional centers will not have to file an updated Form I-956 or Form I-956G due to revisions to the form or the form instructions that were published after the date the regional center filed their Form I-956 or I-956G.
Regional centers should ensure that they are using the most up-to-date version of each form at the time of submission. More information and filing instructions and form editions can be found on our website landing pages for Form I-956 and Form I-956G.
4. Will USCIS allow regional centers to supplement any filed Form I-956G with additional information requested?
Regional centers use Form I-956G to provide required information, certifications, and evidence to support their continued eligibility for regional center designation. The form allows regional centers to amend or supplement a previously filed Form I-956G when we determine or the regional center determines that the previously filed Form I-956G submission is insufficient.
If we determine that the information provided on the Form I-956G is insufficient, we may issue a Request for Information, Request for Evidence, or a Notice of Intent to Terminate.
Regional centers should respond to the Request for Information, the Request for Evidence, or the Notice of Intent to Terminate with the information requested.
5. What is the status of USCIS’s review of initial Form I-956 and amendments?
We began reviewing and adjudicating Forms I-956 after the form was published in May 2022. We continue to review and adjudicate Form I-956 initial applications and amendments.
6. USCIS suggested in response to comments to the Form I-956F that regional centers can interfile any non-material updates to the application while the application is pending adjudication. Before the RIA, any such updates could be incorporated directly into the investors’ Form I-526 petitions. Can USCIS clarify if non-material updates to pending I-956Fs can be interfiled and will not require a new filing?
Nonmaterial updates to pending I-956Fs can be interfiled and do not require a new filing.
7. When must a regional center file a Form I-956 amendment?
According to INA 203(b)(5)(E)(vi), a designated regional center must file a Form I-956 amendment not later than 120 days before the implementation of significant proposed changes to its organizational structure, ownership, or administration, including the sale of such center, or other arrangements which would result in individuals not previously subject to the requirements under INA 203(b)(5) (H) becoming involved with the regional center.
Regional centers must also file a Form I-956 amendment if they are requesting any changes to their approved geographic area or the regional center’s name.
8. Are all regional centers—newly designated as well as previously designated—subject to the new provisions of the INA added by the RIA?
All regional centers—newly designated as well as previously designated—are subject to the new provisions of the INA added by the RIA because the only existing statutory authority under which a regional center may be designated for participation in the regional center program is INA 203(b)(5)(E) following repeal of the former authorizing statute. This is true regardless of whether the designated regional center intends to promote new projects for new investors under the reformed regional center program.
We continue to apply the new provisions of the INA added by the RIA to all regional centers, including those designated before the RIA as contemplated by the Behring preliminary injunction and settlement.
9. When is the annual Integrity Fund Fee due and what amounts should regional centers pay?
Per INA 203(b)(5)(J)(II)(i), on Oct. 1, 2022, and each Oct. 1 thereafter, each regional center must pay into the Integrity Fund. We announced via Federal Register Notice that the first fee payments were due beginning on March 2, 2023. 88 Fed. Reg. 13141. The payment amount required depends on the number of investors under the sponsorship of all the regional center’s new commercial enterprises in the preceding fiscal year.
Regional centers must pay $20,000 if they have 21 or more total investors in the preceding fiscal year in their new commercial enterprises. Regional centers must pay $10,000 if they have 20 or fewer total investors in the preceding fiscal year in their new commercial enterprises.
We will terminate the designation of any regional center that does not pay the fee required within 90 days after the date on which such fee is due.
For more information, visit the following web pages:
USCIS to Start Collecting Fee for EB-5 Integrity Fund | USCIS
Federal Register Notice of EB-5 Regional Center Integrity Fund Fee
10. How do I properly file my Form I-956H, Bona Fides of Person Involved with Regional Center Program?
All Forms I-956H must be properly filed by mailing the forms, and the accompanying biometrics services fee for each Form I-956H, to the appropriate mailing address that is provided on the USCIS website at uscis.gov/i-956h.
This includes the submission of any Form I-956H accompanying the regional center’s Form I-956 and Form I-956F filing as well as any Form I-956H filed in response to a USCIS notice, such as a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID).
If we request additional Forms I-956H, regional centers still should file the additional Forms I-956H according to the proper mailing instructions provided on the form instructions. If you send your Form I-956H and biometrics services fee to the Investor Program Office in Washington, D.C., as exhibits to your response, we may reject the form and the fee. Such rejections may result in the delay of reviewing the response and adjudicating the associated Form I-956 or I-956F application.
With the response, regional centers should indicate in their cover letter the names of all persons for whom a Form I-956H was submitted and that all requested Forms I-956H have been properly submitted according to the form instructions.
11. Why was I scheduled for my biometrics appointment at an application support center far from where I live?
We schedule biometrics appointments at the closest application support center to the address provided in Part 3, Question 15, of Form I-956H.
Therefore, individuals should provide their personal mailing address and not the attorney’s or regional center entity’s address. Providing the correct mailing address will help prevent unnecessary cancellations or rescheduling of the biometrics appointments, which delays the adjudication of the associated Form I-956 or Form I-956F application.
12. What entity name and identification number should I put in the chart in Part 2 of the Form I-956H if I am involved with multiple EB-5 entities?
The name and identification number of the specific entity (regional center, new commercial enterprise (NCE), and job creating entity (JCE)) that the person is involved with for that particular Form I-956H filing that will be filed with an associated Form I-956 (for involvement in a regional center) or Form I-956F (for involvement in a NCE or affiliated JCE). Individuals must submit more than one Form I-956H if they are involved with more than one entity, as explained below.
Specifically, each person involved with a regional center must complete Form I-956H, Bona Fides of Persons Involved with Regional Center Program, to be submitted with the regional center’s Form I-956, Application for Regional Center Designation.
If you are filing a Form I-956H due to your role in the regional center entity, you must provide the regional center name, any other names the regional center is authorized to use, and regional center identification number. Do NOT provide the names of any new commercial enterprise(s) (NCE) or the job-creating entity(ies) (JCE) on this chart even if you are involved with an associated NCE or JCE in some capacity.
Each person involved with an NCE and/or an affiliated JCE must complete Form I-956H to be submitted with Form I-956F, Application for Approval of Investment in a Commercial Enterprise, for those specific entities. A person involved with the regional center who previously filed Form I-956H with the Form I-956 must also file Form I-956H with the Form I-956F if that person is involved with the NCE or affiliated JCE.
Therefore, persons involved with an NCE or affiliated JCE will provide the NCE and JCE names, any other names used (for example, d/b/a), and any associated identification numbers on the Form I-956H submitted with the Form I-956F. Likewise, persons should not include the name or identification number of the regional center entity on the chart if they are submitting the Form I-956H due to their role in the NCE or JCE.
Required Investment Timeframe
1. What is the legal basis that invested capital needs to remain invested for at least 2 years only for investors who filed an I-526 or I-526E petitions after enactment of the RIA?
On March 15, 2022, President Biden signed the EB-5 Reform and Integrity Act of 2022 (RIA) as part of the Consolidated Appropriations Act. This statue reauthorized the Regional Center Program, enacted significant integrity reforms to the EB-5 Program, and, among other things, modified the requirements regarding the timeframe an investor must maintain their investment to establish eligibility for classification under INA 203(b)(5) and to subsequently remove the conditions on their lawful permanent resident (LPR) status under INA 216A. Specifically, INA 203(b)(5)(A)(i) states that, to be eligible for classification, the investment must be “expected to remain invested for not less than 2 years” while INA 216A, as amended by the RIA, no longer requires that the investor sustain their investment throughout their period of conditional residence. Pursuant to Sec. 104(b)(2)(B) of the RIA, however, the removal of the sustainment requirement from INA 216A by the RIA does not apply to investors seeking to remove conditions under INA 216A based on a Form I-526 petition filed prior to enactment of the RIA. Consequently, investors who filed Form I-526 petitions prior to enactment of the RIA must sustain their investment throughout the two-year period of their conditional residence to be eligible for removal of conditions on their permanent resident status.
2. How long must an investment “remain invested” for Form I-526 and I-526E petitions filed on or after March 15, 2022?
An investor filing an EB-5 immigrant visa petition must have invested, or be in the process of investing, the required amount of capital in a new commercial enterprise in the United States and expect to maintain that investment for not less than two years, provided job creation requirements have been met. Though the statute does not explicitly specify when the two-year period under INA 203(b)(5)(A)(i) begins, we interpret the start date to be the date that the full amount of qualifying investment is made to the new commercial enterprise and placed at risk under applicable requirements, including being made available to the job creating entity, as appropriate. If the investor invested more than 2 years before filing the Form I-526 or Form I-526E petition, the investment should generally still be maintained at the time the Form I-526 or Form I-526E is properly filed, for us to appropriately evaluate eligibility.
3. How long is the required investment timeframe for Form I-829 approval?
Because of the changes made by the RIA, the required investment timeframes for removal of conditions will differ depending on whether the investor filed their underlying petition for classification before or after enactment of the RIA.
Pre-RIA Investors. Sec. 104(b)(2)(B) of the RIA explicitly provides that the amendments made by the RIA to INA 216A, including removal of the sustainment requirement, do not apply to investors seeking to remove conditions under INA 216A based on a Form I-526 petition filed prior to enactment of the RIA. RIA Section 105(c) similarly mandated that the Secretary “continue to adjudicate petitions and benefits under sections 203(b)(5) and 216A of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5) and 1186b) during the implementation of this Act and the amendments made by this Act”. Accordingly we will adjudicate Form I-829 petitions associated with Form I-526 petitions filed before March 15, 2022, under the applicable eligibility requirements in place before the enactment of the RIA. Sustainment requirements for this population will remain tied to the 2-year conditional permanent resident period. Pre-RIA investors must sustain their investment “at risk” throughout the 2-year period of conditional permanent resident to be eligible for removal of conditions on their permanent resident status. The conditional permanent resident status begins at the time of adjustment to conditional permanent resident status if the investor is in the United States or at the time of admission to the United States if the investor was abroad. We will review all documentation to establish eligibility.
Post-RIA Investors. Form I-829 petitions based on I-526 and I-526E petitions filed on or after March 15, 2022 will be considered under the new INA 203(b)(5) and 216Arequirements, as amended by the RIA. For purposes of determining the date when the two-year period required by INA 203(b)(5)(A)(i) begins, we will generally use the date that the requisite amount of qualifying investment is made to the new commercial enterprise and placed at risk under applicable requirements, including being made available to the job creating entity, as appropriate. If the investor invested more than 2 years before filing the Form I-526 petition, the investment should generally still be maintained at the time the Form I-526 is properly filed, for us to appropriately evaluate eligibility.
4. Can an NCE retain an investor’s capital beyond the required investment timeframe? Does the INA place a limit on how long the capital can be retained before it must be returned to the investor?
The INA establishes only minimum required investment timeframes for purposes of applicable eligibility requirements and does not place any upward limit on how long an investor’s capital may be retained before being returned. Regional centers or their associated new commercial enterprises can negotiate longer periods of investment directly with their investors independently of EB-5 eligibility requirements.
5. For post-RIA investors, if the required 2-year investment period ends after their Form I-526 or I-526E is filed but before it is approved, can their investment capital be returned without affecting their immigrant petition (assuming job creation and all other eligibility requirements have been met)?
Likely yes, as we generally will use the date that the requisite amount of qualifying investment is made to the new commercial enterprise and placed at risk under applicable requirements, including being made available to the job creating entity, as appropriate.
6. For post-RIA investors, how long must their investment remain invested if they are actively in the process of creating the requisite employment under INA 216A?
Under INA 216A, as amended by the RIA, investors who have not yet created the requisite employment when filing for removal of conditions on their permanent resident status but who are actively in the process of doing so may be granted a discretionary one-year extension of their conditional permanent resident status. The investor’s capital must remain invested during such time, even if it is beyond the two-year minimum period contemplated by INA 203(b)(5)(A)(i).
7. How do pre-RIA direct/standalone investors sustain their investment if they are in a position to get their funds back but have not yet finished their conditional permanent resident period? On that topic, at what point does USCIS consider job creation requirements to be fulfilled for direct investors?
Pre-RIA investors will continue to be subject to pre-RIA requirements for removal of conditions; their sustainment period under INA 216A is tied to the two-year period of their conditional permanent residence. The investor’s investment capital must remain at risk in the new commercial enterprise throughout the 2-year sustainment period. If the investor’s capital was deployed in a manner such that it will not remain at risk before completing the 2-year sustainment period, the investment capital must be further deployed to remain at risk. The job creation requirement is separate from the sustainment requirement and may be fulfilled by the standalone investor when their new commercial enterprise creates the required 10 full-time qualifying direct jobs in the United States. Those jobs must be permanent and held by qualified employees. The creation or preservation of jobs must occur within 2 years of the investor’s conditional permanent residency and entrance into the United States.
Targeted Employment Areas (TEA) and Infrastructure Projects
8. Where in the adjudications process will designations of high unemployment areas and infrastructure projects take place?
For regional center cases, we will make these designations in adjudicating Form I-956F, Application for Approval of an Investment in a Commercial Enterprise.
For standalone cases, we will make these designations in adjudicating Form I-526, Immigrant Petition by Standalone Investor. By statute, the lower investment amount and visa set aside resulting from investment in an infrastructure project are limited to regional center-sponsored commercial enterprises. See Immigration and Nationality Act (INA) section 203(b)(5)(D)(iv)).
Application to Register Permanent Residence or Adjust Status (Form I-485)
9. Can I file a Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor, at the same time (“concurrent filing”)?
Yes, you can file Form I-485 and Form I-526 or Form I-526E concurrently if approval of your petition would make a visa immediately available to you. See INA section 245(n). If you have a pending Form I-526, including those filed before March 15, 2022, you may file a Form I-485 if you meet relevant requirements. Please refer to the Form I-485 page for additional information on Form I-485 filing requirements or consult an attorney before filing. Be sure to mail the forms to the address listed on this page: Direct Filing Addresses for Form I-526, Immigrant Petition by Alien Entrepreneur.
General Implementation
1. Is failing to comply with biometrics appointments a ground for denying a Form I-829 and removing conditional permanent resident status?
As part of administering immigration benefits, we may require any applicant, petitioner, sponsor, beneficiary, or individual filing a benefit request, or any group or class of such persons submitting requests, to appear for an interview or biometrics services, or for both. See 8 CFR 103.2(b)(9). Biometrics services may include fingerprints, photographs, or digital signatures. Biometrics permit us to verify a person’s identity, produce secure documents, and facilitate required background checks to protect national security and public safety and to ensure that the person is eligible for the benefit sought. If we require an individual to submit biometrics or appear for an interview or other in-person process but the person does not appear, we may consider the benefit request abandoned and deny the request unless, by the appointment time, we have received a notice of change of address or a request to reschedule that we believe warrants excusing the failure to appear. See 8 CFR 103.2(b)(13)(ii).
2. How should industry stakeholders, petitioners, applicants, and seekers of benefits under the immigrant visa program communicate with DHS about specific EB-5 cases or seek information that is not case-specific about the EB-5 program?
Section 107 of the RIA incorporates many of the same restrictions from the 2015 DHS EB-5 Ethics and Integrity Protocols. RIA mandates that DHS employees act impartially and not give preferential treatment to any entity, organization, or individual in connection with any aspect of the EB-5 program. It also mandates specific channels as the only channels or offices by which industry stakeholders, petitioners, applicants, and seekers of benefits under the EB-5 program may communicate with DHS about specific EB-5 cases (except for communication made by applicants and petitioners under regular adjudicatory procedures), or information that is not case-specific about the EB-5 program. In accordance with these requirements, we offer the following modes of communication:
- Email to USCIS.ImmigrantInvestorProgram@uscis.dhs.gov;
- Our Contact Center; and
- Our Office of Public Engagement.
Administrative Procedure Act (APA) Considerations with Interpretation
1. Why are these interpretations being announced via the USCIS website and not through notice and comment rulemaking procedures?
These updates interpret the Immigration and Nationality Act (INA) and the EB-5 Reform and Integrity Act of 2022 (RIA), and an agency is not required to use the Administrative Procedure Act’s (APA) notice-and-comment procedures to issue an interpretive rule or one that amends or repeals an existing interpretive rule, or when modifying rules of agency organization, procedure, or practice. See, e.g., Perez v. Mortgage Bankers Assoc., 135 S. Ct. 1199 (2015). These updates and interpretations do not add to the substantive regulations, create legally binding rights, obligations, or change the substantive standards by which IPO will evaluate EB-5 petitions and applications. Rather, we have interpreted the investor eligibility investment sustainment as closely as practicable to the plain language of the RIA.
2. Are USCIS officers bound by this guidance?
This website guidance helps our officers in rendering decisions, and should generally be followed by officers in the performance of their duties but it does not remove their discretion in making adjudicatory decisions. This guidance and the interpretations do not create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
3. How will USCIS apply these provisions and has it considered the reliance interests of, and potential retroactive impacts to, EB-5 entities and petitioners who filed or were approved prior to the RIA?
Required Investment Timeframe.
As intended by the RIA, we will apply the provisions of the INA applicable to required investment timeframes and amended by the RIA to EB-5 investors that file their Form I-526 or Form I-526E petitions on or after March 15, 2022. Forms I-829 based on Forms I-526 that were filed prior to March 15, 2022, will generally continue to be adjudicated under the prior statutory framework, as required by Sections 104(b)(2)(B) and 105(c) of the RIA. After a consideration of reliance interests and potential retroactive impacts, we believe the interpretations and guidance explained above provide flexibility and lessen the burdens on EB-5 entities.
Interpreting the start date for the 2-year investment period required under INA 203(b)(5)(A)(i) to be the date that the full amount of qualifying investment is made to the new commercial enterprise and placed at risk under applicable requirements, aligns most closely with the plain language of the statute. Additionally, for us to appropriately evaluate eligibility, the investment should generally still be maintained if the investor invested more than 2 years before filing the Form I-526 or Form I-526E petition.
We do not believe that there are reliance or retroactivity impacts with this interpretation, as it aligns closely with the plain language of the statute and applies to petitions filed on or after the effective date of the RIA. To the extent there may be interests at stake, we believe this interpretation lessens the burden on the investor to keep their investment in place for an extended period, due to circumstances beyond the investor’s or the NCE’s control, such as visa backlogs or other such circumstances. Further we believe it provides the greatest level of flexibility for stakeholders to create investment strategies, limits the need for NCEs to redeploy investor capital after sufficient jobs have been created, and provides the investor a significant degree of control.
INA 203(b)(5)(M).
Interpreting INA 203(b)(5)(M) to apply to pre-RIA investors associated with a terminated regional center (or debarred new commercial enterprise or job-creating entity) is also in accordance with the plain language of the INA and its intent. Neither the RIA nor the INA differentiates between pre- or post-RIA investors for purposes of the protections afforded to good faith investors under INA 203(b)(5)(M). We recognize that applying a new provision of the INA added by the RIA to those who filed prior to its effective date could appear to be retroactive; however, we believe that this protects petitioner and applicant interests. Further, the relevant conduct covered by this provision, termination or debarment of an EB-5 entity, from which applicable legal consequences will flow will be applied only to terminations or debarment occurring after enactment of the RIA (in other words, we will apply this provision prospectively based on the conduct—termination or debarment—relevant to its application). More specifically, prior to the RIA, regional center investors had to show that their investment was within an approved regional center in order to demonstrate eligibility for their Forms I-526 petitions and, in line with these requirements, longstanding USCIS policy has considered the termination of a regional center associated with a regional center investor’s Form I-526 petition to constitute a material change that would generally result in ineligibility. Applying this provision for post-RIA terminations or debarments of associated EB-5 entities avoids significant adverse impact to pre-RIA petitioners whose eligibility could be impacted by post-RIA terminations or debarments and provides flexibilities for them to maintain eligibility.
With respect to the notification deadlines, we have authority to extend certain deadlines under INA 203(b)(5)(M)(v)(II). We generally plan to extend the deadline for pre-RIA investors to respond to a regional center termination notification until we adjudicate their petition. We recognize that this interpretation would not generally apply to post-RIA investors, however, we believe this is justifiable because there is a large volume of investors that could be affected by terminations of previously designated regional centers based solely on noncompliance with certain new administrative requirements added by the RIA and that this is unlikely to recur to the same degree and with the same considerations for post-RIA investors in the future. Specifically, before March 15, 2022, there were 632 regional centers and as of June 30, 2023, we have received only 357 Form I-956, Application for Regional Center Designation, applications or amendments for previously designated regional centers, and only 250 of previously designated regional centers have paid the Integrity Fund Fee. We interpret the RIA in a manner we hope permits good faith investors of terminated regional centers to retain their eligibility, and do not believe post-RIA investors will be under the same immediate constraints such that they would be prejudiced by interpreting and applying this flexibility to pre-RIA investors in this limited circumstance.
EB-5 Questions and Answers (Updated Oct. 2023) as published 10/11/2023
EB-5 Updates 