Is the EB-5 program still available? As of July 2021, the EB-5 Program is available only through a direct investment in an operating business. That means the EB-5 investor has to either create a new business and get it fully operational or purchase an existing US business. The option to invest passively through an EB-5 regional center is currently not available. That is because the US Congress failed to reauthorize the EB-5 Regional Center Program by its expiration at midnight, June 30, 2021.
For those unfamiliar, EB-5 program allows a foreign individual and his or her immediate family to come and live in the United States on a permanent basis. The main condition is to make a substantial investment which as of the date of this publication is minimum $1 million or $500,000 if invested in a rural or high unemployment areas. The investment must lead to the creation of at least 10 new jobs for U.S. workers. Generally, this investment can be realized either through a direct investment in an operating business or by investing through a regional center. However, as of the date of this article the EB-5 Immigrant Investor Regional Center Program has expired and was not reauthorized. This lapse in authorization does not affect EB-5 visa petitions filed by investors who are seeking a visa through a direct investment. Due to the lapse in authorization related to the Regional Center Program, the United States Citizenship and Immigration Services (USCIS) will reject the following forms received on or after July 1, 2021:
- Application for Regional Center Designation Under the Immigrant Investor Program, except when the application type indicates that it is an amendment to the regional center’s name, organizational structure, ownership, or administration; and
- Immigrant Petition by Alien Investor, when it indicates that the petitioner’s investment is associated with an approved Regional Center.
- Application to Register Permanent Residence or Adjust Status, and any associated Applications for Employment Authorization, and Applications for Travel Document, based on an approved Regional Center Immigrant Petition by Alien Investor.
During the period of lapse in authorization for the EB-5 Regional Center program, the USCIS will not continue to process any pending petition or application of these form types that is associated with the EB-5 Regional Center program until further notice. If you were issued written correspondence regarding your petition or application on or before June 30, 2021, you should review the written correspondence and respond by the due date (as applicable). Although USCIS will not review your response during the lapse in authorization, it will continue to receive and maintain the response for review when circumstances change.
However, the USCIS will continue to accept and process Form the Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, in the normal course, including those filed on or after July 1, 2021.
The EB-5 Regional Center Program has never been made permanent but has been reauthorized every year in one-year increments as part of annual government funding legislation. Earlier in 2021, the United States Congress took the extraordinary step of removing the Regional Center Program from other appropriations legislation that is usually passed together. This was done with the intention to introduce changes in the EB-5 Regional Center Program through new law instead of using the rule-making process of the executive branch which can be challenged in court and lead to sudden reversal of new program rules. For example, a US federal court recently struck down changes to EB-5 program that were increasing the minimum investment amounts to $1.8 million and $900,000 for rural or high unemployment areas, reverting it back to $1 million and $500,000 respectively.
What Should Potential EB-5 Regional Center Investors Do Now?
Despite the expiration of the Regional Center Program, the US Congress is likely to reauthorize it in the near future. Potential EB-5 investors can use the time to:
- Start looking for a suitable regional center investment that meets their risk/reward criteria.
- Find and hire a competent immigration attorney.
- Start documenting the source of funds for the investment by collecting bank statements, dividend records, tax information, loan documents, sale of property records, etc.
Is the EB-5 program still available? Contact our offices to inquire about the status of the EB-5 program. If you are interested in the EB-5 program you can learn more here or if you want to start the process, you can contact our EB-5 immigration lawyers in Miami, Florida USA or schedule an appointment.
Malescu Law P.A. – EB-5 program