Memo: EB-5 Questions and Answers
On April 29, 2022, the USCIS updated their website with EB-5 Questions and Answers (Updated April 2022).
General Information: The EB-5 Reform and Integrity Act of 2022 (“the Act”) made various changes to the EB-5 Program:
All potential Regional Centers must apply for designation through a new form, the I-956 Form – Application to Regional Center Designation. All previously designated Regional Centers must reapply by filing the new form. This means that all previously designated Regional Centers have been decertified as a result of the new Act. If they do not reapply, they will lose status as a Regional Center. Individuals seeking to apply for a new I-526 under a Regional Center must show that the Regional Center has already submitted a project application (I-956 form) and received a receipt number.
The Act only impacts I-526 Petitions filed on or after March 15, 2022. If the Regional Center on a petition is no longer designated, the petition can still be approved as long as it meets the other criteria.
USCIS will reject all I-924/ I-924A filings as there are no longer any grounds to file amendments or certifications. USCIS will also reject any pooled direct cases filed on or after March 15, 2022. When adjudicating petitions, USCIS will review claimed high-unemployment areas for regional centers or direct investments. USCIS will also determine if investments meet the definition of “infrastructure project” during adjudication.
The form, instructions, and additional information will be published to USCIS by May 14th, 2022.
Please feel free to contact our office at email@example.com with any questions you may have regarding these changes to the EB-5 Program.
- How can an entity become a regional center?
Entities seeking to be designated as a regional center are required to file Form I-956, Application for Regional Center Designation. USCIS will be publishing this new form, including the form instructions, with additional information regarding the filing process by May 14, 2022.
- Are previously designated regional centers able to maintain their designation without filing a Form I-956, Application for Regional Center Designation?
No. The EB-5 Reform and Integrity Act of 2022 repealed the legacy Regional Center Program. As a result, previously designated regional centers must reapply by filing the new Form I-956, Application for Regional Center Designation.
- I currently represent a previously designated regional center seeking to amend my designation or submit my annual statement. Can I file Form I-924 or I-924A now?
No, USCIS will reject all Form I-924 and Form I-924A filings. Since the EB-5 Reform and Integrity Act of 2022 repealed the legacy Regional Center Program and any prior designations, there are no grounds to file amendments or annual certifications.
Immigrant Petition by Alien Entrepreneur (Form I-526):
- When can I file a regional center-related I-526?
Individuals seeking status as an immigrant investor whose investment project is associated with a regional center (with an approved Form I-956 after May 14, 2022), may file a Form I-526, Immigrant Petition by Alien Entrepreneur, only after the regional center has submitted a project application and received a receipt number for that application.
- Is USCIS processing regional center-related Forms I-526s filed on or before June 30, 2021?
USCIS has resumed processing regional center-related Form I-526, Immigrant Petition by Alien Entrepreneur, filed on or before June 30, 2021, the sunset of the previous regional center program. USCIS will adjudicate those Forms I-526 petitions according to the applicable eligibility requirements at the time such petitions were filed (that is, the eligibility requirements in place prior to the enactment of the new legislation on March 15, 2022).
- Can I still establish eligibility based on my pre-enactment Form I-526 petition even though the previously approved regional center associated with my petition is no longer designated?
Yes. While repeal of the prior immigrant investor program requires previously designated regional centers to reapply for designation if they wish to continue their participation, the need to reapply does not impact petitions pending prior to March 15, 2022 associated with those entities; rather the impact is limited to the ability to support new petitions in the future. Despite the previously approved regional center associated with your petition no longer being designated, you may still establish eligibility by demonstrating compliance with other applicable requirements (primarily investment and job creation, including indirect job creation as provided under the former statute).
- How is USCIS treating pooled standalone cases?
Pooled standalone cases are not allowed under the EB-5 Reform and Integrity Act of 2022; therefore, USCIS will reject any petition based on a pooled, non-regional center investment filed on or after March 15, 2022. USCIS will adjudicate pooled standalone cases filed before March 15, 2022 based on eligibility requirements at the time such petitions were filed.
- How can I request that USCIS designate an area as a high unemployment area?
USCIS will review the area claimed as a high unemployment area when adjudicating the project application for regional center filings or the individual’s petition for standalone investments.
A high unemployment area is a census tract, or contiguous census tracts, where the new commercial enterprise is principally doing business, experiencing unemployment of at least 150% the national average. When calculating the weighted unemployment rate, the area may include any census tracts directly adjacent to those where the NCE is principally doing business.
- How can I request that USCIS determine whether a specific capital investment project meets the definition of “infrastructure project”?
USCIS will determine if the investment is in a qualified infrastructure project when adjudicating the regional center’s project application.
An infrastructure project is 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 from alien investors or the new commercial enterprise as financing for maintaining, improving, or constructing a public works project.
- Will USCIS still apply its further deployment policy and consider further deployment outside of the regional center’s geographic area as disqualifying?
The EB-5 Reform and Integrity Act of 2022 repealed the former regional center statute and previously approved regional centers are no longer designated. The EB-5 Reform and Integrity Act of 2022 also allows for further deployment of capital anywhere in the United States or its territories. Therefore, including for petitions filed pre-enactment, further deployment is not required within the same regional center or within any regional center’s geographic area.