USCIS Provides Updated Guidance for EB-5 Investment Sustainment Period and Investors Associated with Terminated Regional Centers

October 11th, 2023 Kyle Behring

Today, USCIS provided additional guidance on it’s interpretation of changes to the EB-5 program in the Immigration and Nationality Act (INA) made by the EB-5 Reform and Integrity Act of 2022 (RIA), specifically the required investment timeframe and how USCIS treat investors who are associated with a terminated regional center.

The guidance provided by USCIS clarifies the required investment timeframe for EB-5 investors who filed I-526 or I-526E petitions on or after March 15h, 2022. For investors seeking to remove conditions on their permanent resident status based on an EB-5 immigrant visa petition filed on or after enactment of the RIA (post-RIA investors), the RIA removed the requirement that the investor must sustain their investment throughout their conditional residence.

The RIA also modified the general requirement for the EB-5 investment sustainment period by adding new language that the investment must be expected to remain invested for at least two years if job creation requirements have been met; investors filing petitions for classification after enactment of the RIA no longer need to sustain their investment throughout their conditional residence.

Additionally, the RIA introduced a provision in INA 203(b)(5)(M) allowing investors affiliated with terminated regional centers to maintain eligibility under specific conditions. USCIS has clarified its interpretation, noting that this applies to pre-RIA investors too. Instead of sticking rigidly to prescribed timeframes, USCIS will give these investors more time to respond to termination notifications until their Form I-526 petition gets a decision. Furthermore, in cases where a regional center’s termination is due to administrative oversights, it typically won’t negatively impact a pre-RIA investor’s eligibility. However, USCIS may choose not to extend applicable response deadlines when a regional center is terminated for substantive reasons that may affect the continued eligibility of their associated investors.

Behring will be hosting a webinar on October 18th at 4PM PST providing an update on the EB-5 program and multifamily residential real estate market. Register for the webinar with the link below to learn more about these EB-5 policy changes and how they will affect the EB-5 industry going forward.