In the world of EB-5 Immigrant Investor Visas, October 2023 brought significant developments that both investors and stakeholders should be aware of. Below are the top five highlights:
1. Sustainment Period Clarification: USCIS has provided guidance regarding the EB-5 Reform and Integrity Act of 2022 (RIA), stating that for investors who file the new Form I-526E after the RIA, the sustainment period is now reduced to 2 years from the date of the qualifying investment. This marks a shift from the previous requirement of sustaining the investment throughout the entire conditional residence period. The key takeaway is that USCIS guidance impacts the green card process, not the contractual investment or subscription agreement.
2. Accelerated I-526E Processing: USCIS has introduced separate adjudication teams for post-RIA Form I-526Es, resulting in faster case processing times. Approvals have been granted in as little as 3 months for investments in certain rural projects, and regional centers report adjudications within 12-13 months for high unemployment area projects. Investors now inquire about Form I-956F adjudications before making investment decisions.
3. EB-5 Visa Utilization in FY 2023: The U.S. Department of State (DOS) reported that the issuance of unreserved visa numbers in FY 2023 likely surpassed the annual limit of approximately 9,500. This was primarily due to consulates/embassies abroad issuing a significant number of visas, along with around 1,500 visas utilized through USCIS adjustment of status applications.
4. Record High EB-5 Visa Numbers in FY 2024: FY 2024 anticipates the availability of a record-breaking number of EB-5 visas, estimated at 20,000. This surge is attributed to the visa ‘carryover’ provisions outlined in the RIA. Delayed adjudications led to reserved visas from FY 2022 and FY 2023 rolling over into FY 2024. The outlook for EB-5 remains positive throughout FY 2024, and visa categories are expected to stay ‘current’ in the Visa Bulletin.
5. Relief for Pre-RIA Investors: USCIS’ recent guidance offers relief to pre-RIA investors associated with Regional Centers that no longer comply with RIA’s updated rules. While the definition of ‘purely administrative noncompliance’ remains unclear, USCIS suggests that in certain circumstances, pre-RIA investors may still be eligible for green cards based on indirect job creation, even if their associated regional center terminates. This guidance aims to protect immigrant investors in cases where regional centers fail to meet EB-5 Integrity Fees or filing requirements.