Historic Green Card Opportunity Under New EB-5 Law
What is EB-5?
EB-5 is an investment-based U.S. immigration program that allows foreign nationals to obtain permanent residency in the United States by making a qualified investment. The program was originally created in 1990 and grew immensely popular after the 2008 Great Recession. The program was recently overhauled by the EB-5 Reform and Integrity Act of 2022, which was enacted on March 15, 2022.
EB-5 Reform and Integrity Act of 2022
The EB-5 program was originally passed into law as a temporary pilot program that was renewed every few years but was never made permanent. After the increase in the EB-5 program’s popularity in the late 2000s, various issues gradually arose that led to the need to reform the program. Due to the immense popularity of the program and more applications being filed every year than visas were available by law, visa backlogs began to develop in 2015, leading to very long waiting times to immigrate and many children aging out of eligibility when they turned 21. USCIS also processing times slowed down due to the growing complexity of the program, while EB-5 litigation in courts increased.
Minimum investment amount
The standard minimum amount required to be invested under the EB-5 program is $1,050,000. However, if the investment project is located in a Targeted Employment Area (TEA), the minimum amount is reduced to only $800,000.
Concurrent I-526 and I-485 Filing
An I-485 Application for Adjustment of Status is an application for a Green Card filed immigration applicants who are already in the United States. By filing an I-485 application, immigration applicants may lawfully stay in the U.S. for as long as their I-526 application undergoes processing. They may also work and travel upon approval of the interim Application for Employment Authorization (I-765) and Application for Travel Document (I-131). Filing an I-485 application also locks in the age of a qualifying derivative child. An EB-5 applicant may file concurrent I-526 and I-485 applications so long as a visa is immediately available in the relevant category per the monthly Visa Bulletin.
Targeted Employment Areas (TEA)
The new EB-5 law sets forth three types of Targeted Employment Areas:
- High unemployment area – a location where the local unemployment rate is at least 150% of the national unemployment rate
- Rural area – a location that is outside of a metropolitan statistical area or a city or town of 20,000 or more population
- Infrastructure – a public works project sponsored by a government entity.
There are a total of approximately 10,000 EB-5 visas available every year. Of this amount, 20% is reserved for rural area TEA projects, 10% is reserved for high unemployment area TEA projects, and 2% for infrastructure projects. These new visa reservation categories are expected to apply only to new EB-5 investors. Therefore, new investors who invest in visa reservation categories will not be subject to waiting in a visa line in the beginning, for as long as these reserved categories remain current in the Visa Bulletin. As a result, new investors in the United States may file concurrent I-526 and I-485 applications, while overseas investors will be able to get an immigrant interview at a U.S. consulate soon after their I-526 application is approved.
EB-5 regulations require that an investment be actively invested in an at-risk project until 2 years after receiving a conditional Green Card. By being able to obtain conditional residency quickly, they will also be able to redeem their investment capital quicker and they may be able to avoid redeployment of investment capital into secondary projects.
Visa Reservation Predictions
After the reserved visa categories demand begins to exceed supply and a visa line forms, investors will not be able to file I-485 at same time as I-526 anymore, and will not be able to schedule an interview at a consulate right after I-526 approval, but will have to wait for priority date in a visa line. However, it is expected that such line will not start to form for several years, and when it does start, it will still be a somewhat shorter line than the current line is for old EB-5 investors.
The visa reservation categories are brand new, so they will be starting from zero. Thus, they are likely to be current with visas immediately available to investors for several years. The visa line is based on the amount of approved EB-5 I-526 applications, and not on the number of filings. Since it typically takes a long time (one to two years) for USCIS to adjudicate an application, the new reserved categories may not start to fill up for several years.
Once they start filling up, it may take another couple of years until there are enough approvals that visa demand exceeds visa supply. Therefore, new currently investors have a historic opportunity to get an EB-5 immigrant visa much quicker than was possible before the new law was enacted.