News Flash – Washington DC – EB-5 Amendment

The U.S. Senate Judiciary Committee has passed amendments to the EB-5 statute, which may become part of the comprehensive immigration reform bill (S.744) on which Congress is presently working. This is NOT law yet – just a proposed law.

 If it becomes law, the bill will change the EB-5 immigrant investor process as follows:

• USCIS may “preapprove” regional center projects or “business plans.” If the EB-5 petitions (I-526s) are filed based on a preapproved project, they may be expedited (premium processing).
• Regional center removal of conditions applications (I-829s) must include submission of the annual project financial statements filed by the regional center, but need not otherwise prove job creation. As long as the detailed annual filings that this bill requires establish that the regional center’s project is progressing and creating jobs, then the I-829s should be approved for investors who have maintained their investments in a project in good faith. This effectively shifts the heavy documentation requirement to the regional center annual filings or I-526 petitions, which is a good thing for the investors/immigrants as, in most cases, the I-829s will be granted.

This bill also:

• Permanently extends the EB-5 regional center program.
• Adds more EB-5 visas numbers (by not counting dependents)
• Permits construction jobs and intermittent full-time equivalent jobs
• Permits concurrent I-526 and adjustment (I-485) filing if applicant is in the U.S.
• Provides for premium processing (expedited) of I-526 if project is preapproved

Following is a more detailed explanation of the amendment. Note: this bill may change before it becomes law, if S.744 passes both the Senate and the House; and our understanding of some sections may change.

I-526 petitions: 

• The amendment also extends TEA certifications to five years (instead of the current one year); and redefines TEAs to include a single or group of census tracts. Alternatively, a TEA may be an area already defined as an Enterprise Zone, Promise Zone, Empowerment Zone, or a Renewal Community. This provision also expands the definition of “rural” to include any city or town of less than 20,000 located in a state with fewer than 1.5 million. The poverty provision does not apply to rural or enterprise zone TEAs.
• Redefines full-time employment to allow for full-time equivalents, including intermittent or seasonal employment opportunities and construction jobs. The statute also clarifies that full-time jobs are not required for indirect job creation.
• This provision increases the number of direct jobs that can be counted, and should allow for more investment into agricultural projects and construction, which often depend on seasonal and intermittent jobs.

Dependents and adjustment:

• Assists unmarried children of investors by allowing them to be dependents with the parent or come later if their parent’s conditional permanent residence is approved, as long as the parent files another I-526 petition within a year. It allows concurrent filing of EB-5 petitions and adjustment of status, which will help students and others in the United States. Pursuant to 245(k), it also allows for someone to be out of status or engage in unauthorized employment for up to six months, just like other employment-based immigrant categories.
• Exempts dependents from EB-5 visa numbers, making the 10,000 go much further.

Final thoughts:

I will keep you posted as more information becomes available. This bill changed considerably in the past week, and I anticipate further changes as the bill works its way through Congress. Then we will have the USCIS regulations, which will add detailed requirements. But, there is no certainty this will become law at all.