EB-5 Visas Still Not Being Processed: Why This is Problematic
By: Annika Minton
The United States EB-5 visa was created in 1990 to provide a method for foreign investors (and their spouses and unmarried children under 21) to obtain a U.S. visa by investing capital with the goal of financing a business that will employ at least 10 American workers. The US government allocates 10,000 of these visas per year.
This particular program has not been renewed since June 2021, when a federal judge struck down the 2019 EB-5 “modernization” regulation, the goal of which was to increase the investment threshold from $500,000 to $900,000 in targeted employment areas (a rural area or an area with high unemployment). This has left many people wondering what the future looks like for EB-5 applicants.
EB-5 applicants traditionally had the choice of investing directly or through a bigger investor pool via regional centers, which are federally approved third-party intermediaries that connect foreign investors with developers in need of funding. Regional centers are usually private, for-profit businesses that have to be approved by USCIS. As of June 30, 2021, Congress has not reauthorized the regional center program, so investors must now invest in a direct investment instead of a regional center and still directly employ at least 10 American workers.
USCIS confirmed several important points with regards to applications after June 30, 2021, including:
- USCIS would not accept new Form I-526 Petitions filed by EB-5 investors based on a regional center investment until Congress reauthorizes the program.
- USCIS will not accept new Form I-485 applications to adjust status to permanent residence (used by immigrants with an approved I-526 to apply for the two-year U.S. green card) until Congress reauthorizes the program.
- For any Form I-526 Petition and I-485 application that is pending as of June 30, 2021, USCIS will continue to suspend these applications until at least December 31, 2021
- For any “Request for Evidence” issued on a Form I-526 Petition or I-485 application, USCIS confirmed that applicants should respond by the deadline.
Why is This Program Important to the United States?
This visa has proven to be very important to the United States economy, especially since it is one of the few government programs that creates jobs without taxpayer costs. A 2015 study found that the EB-5 investor visa program actually boosted investment in the United States during the Great Recession from 2008 to 2012. More specifically, the EB-5 investor program has been proven essential in filling the financing gap, especially for hotels.
What to Expect in the Coming Months
As far as pending I-526 petitions, if a significant period of time passes beyond December 31, 2021, and Congress still hasn’t adopted a program re-authorization, it is possible that USCIS could deny pending petitions. However, the American Immigrant Investor Alliance, a D.C.-based non-profit, proposed the adoption of a Foreign Investor Fairness Protection Act (FIFPA). This would allow foreign investors with pending applications to be grandfathered in and protected from loss of funds.
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