EB-5 Regional Center Program is reauthorized!! New minimum investment amount is $800,000 now.
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EB-5 Regional Center Program is reauthorized!! The new minimum investment amount is $800,000 now.
On Tuesday, March 15, 2022, the President signed the omnibus appropriations bill H.R. 2471 – Consolidated Appropriations Act, 2022, into law. The bill includes the EB-5 reform bill, titled the “EB-5 Reform and Integrity Act of 2022”.
The 5-year reauthorization will provide much-needed stability to the Program. The following is a summary of some of the key provisions of the EB-5 Reform and Integrity Act of 2022:
- Reauthorization of the EB-5 Regional Center Program: Through September 30, 2027, but amendments effective 60 days after enactment of the bill. Investors must wait 60 days to file for an existing project. New filings must comply with the new TEA definition, the new investment levels, and the new source of fund rules. This is the first long-term reauthorization of the Program since 2015, after many years of short-term reauthorizations. The EB-5 industry came together and pushed for comprehensive reforms. Several of those key reforms did not make it into this legislation including much-needed immigrant visa backlog relief. Still, this is an amazing achievement. Kudos go to everyone who worked very hard to get this legislation approved.
- I-526 processing: Past investor petitions should now be processed by the USCIS upon the enactment of the legislation. The new Program requirements will only apply to new I-526 petitions.
- Job creation: Indirect jobs can only account for up to 90% of the job creation requirement or up to 75% if the construction of the project is less than two years. The remaining required job creation must be through direct job creation, which can be proven using reasonable econometric methodologies.
- Minimum Investment Amounts: Applicable on the date of enactment
- TEA and Infrastructure Projects: $800,000 per investor
- Non-TEA Projects: $1,050,000
- Automatic Adjustments: On January 1, 2027, and every 5 years thereafter. The new minimum investment amount remain constant for the next five years. Beginning on January 1, 2027, and every five years thereafter, the investment amount will adjust for inflation based on a formula using the Consumer Price Index (CPI).
- Source of funds: The requirements for source of funds now apply not only to the capital investment but also to any administrative fees or other fees such as USCIS filing fees associated with the investment.
- TEA redefined: as a rural area, an infrastructure project, or an area designated by the Secretary of Homeland Security as a high unemployment area.
- Rural: In areas outside a Metropolitan Statistical Area, or within the outer boundary of any city or town with a population of 20,000 or more. (No change from prior law)
- High Unemployment Area:
- Redefined: Greenberg Traurig calls the codification of the 2019 USCIS regulation the “donut” approach. The project must be located in a census tract, or contiguous census tracts that is “adjacent” to the project’s census tract, with the weighted average of the unemployment rate for the census tracts being 150% or higher than the national average unemployment rate. Secretary of Homeland Security (not local governments and states) has the discretion to include a “directly adjacent” tract (to either the “anchor” tract or a “contiguous” tract) to satisfy the requisite 150% high unemployment criteria. iii. TEA designations shall be in effect for 2-year periods beginning on the date an application is made to USCIS for such TEA designation.
- Secretary of Homeland Security (not local governments and states) has the discretion to include a “directly adjacent” tract (to either the “anchor” tract or a “contiguous” tract) to satisfy the requisite 150% high unemployment criteria. iii. TEA designations shall be in effect for 2-year periods beginning on the date an application is made to USCIS for such TEA designation.
- Infrastructure: These are public works projects in which a governmental entity is a job-creating entity that receives the EB-5 capital from the new commercial enterprise managed by a Regional Center.
- Visa set-asides for TEAs (approx. 3200 visas):
- 20% (approx. 2000 visas) for investors who invested in rural areas.
- 10% (approx. 1000 visas) for investors who invested in high unemployment areas.
- 2% (approx. 200 visas) for investors who invested in infrastructure areas.
- Unused visas “carry over” in the same category immediately following year.
- Unused visas in any category are made generally available for any project, in the year immediately following the “carry-over” year.
- Priority Processing: Available for rural areas only. Section 6 of the legislation mandates that within a year of enactment, USCIS will conduct a fee study and then charge fees sufficient to ensure efficient processing.
- Redeployment: Allows redeployment anywhere in the U.S. to keep the investment at risk. These rules will provide more flexibility as to the location of redeployment investments, thereby allowing the new commercial enterprise (NCE) to source the most appropriate redeployment options for its investors without regard for geographic location within the United States.
- Job Creation:
- Ten jobs must be created per investment (same as prior law)
- One of the ten required jobs must be a “direct” job; the other nine can be modeled, estimated indirect jobs
- Construction jobs that last less than two years can satisfy 75% of the estimated indirect jobs.
- Protection from expired legislation (so-called “grandfathering provisions”): Petitions filed during the time the RC Program was authorized will continue to be processed. The Program includes language to protect all investors who file petitions on or before September 30, 2026, which is one year before the next Program expiration date, should the program expire on September 30, 2027. Such investors cannot be denied based on the expiration of the Program. Visas will be allocated to beneficiaries of such petitions.
- Concurrent filing of I-526 and I-485 for adjustment of status: In case the approval of an EB-5 petition would make a visa immediately available to the petitioner, investors can concurrently file their I-526 petitions (showing EB-5 compliance and investment) and their I-485 petitions (application for a conditional green card, which adjusts status from a non-immigrant to a conditional permanent resident provided that a visa is available.
- Integrity Measures:
- Regional Center Program Audits: All regional centers will undergo a USCIS audit at least once every 5 years.
- EB-5 Integrity Fund (Fund): Created 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; among others. Each regional center must contribute $10,000-$20,000 annually (depending on the size of the regional center) for the Fund starting October 1, 2022. These new measures should prevent fraud and abuse and provide tools to DHS to prevent national security breaches. They will allow USCIS to investigate and monitor all of the parties within the EB-5 industry to ensure compliance. Regional centers with 20 or fewer total investors will contribute $10,000 for the Fund.
- Direct and third-party promoters (including migration agents): Have to be registered with USCIS. Each investor’s EB-5 petition 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.
- Fund Administrator: Required to be retained by a new commercial enterprise and shall monitor and track any transfer of amounts from the separate account; shall serve as a cosignatory on all separate accounts; before any transfer of amounts from a separate account, shall verify that the transfer complies with all governing documents, including organizational, operational, and investment documents.
If you want to find out more about the new EB-5 program, please do not hesitate to call us at + 1 917 355 9251 or write to us at firstname.lastname@example.org.
Posted by americaeb5visa on March 14, 2022
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