Think Immigration: The Advantages of EB-5 Today

The EB-5 Reform and Integrity Act of 2022 (RIA) has significantly transformed the EB-5 investor green card landscape.

With enhanced protections, streamlined processes, and new opportunities, the RIA makes EB-5 an appealing option for those seeking U.S. permanent residency amid current immigration challenges.

Originally created by Congress in 1990 to bolster the U.S. economy through foreign investment, the EB-5 program quickly became a popular route to a green card. However, the program also experienced challenges such as fraud, lengthy processing times, limited visa availability, and the need for frequent congressional reauthorization.

To address these challenges, Congress enacted the RIA on March 15, 2022, introducing substantial improvements to the EB-5 regional center program.

The new EB-5 program offers a viable and welcome alternative for getting a green card, particularly as most other visa categories face overwhelming backlogs, require employer sponsorship, or demand active business management.

Capital Investment and Job Creation Requirements

The capital investment requirement is $800,000 for EB-5 projects in rural or high-unemployment areas and infrastructure projects, while projects in other areas require a $1,050,000 investment.

Investors must prove their funds are lawfully sourced and will create ten permanent full-time jobs for U.S. workers.

EB-5 Regional Center

An EB-5 regional center, approved by U.S. Citizenship and Immigration Services (USCIS), is an entity that facilitates pooled investments from multiple EB-5 investors into various projects, including commercial ventures such as hotels, condominiums, resorts, universities, and hospitals.

Investing through a regional center enables EB-5 investors to satisfy the job creation requirement through indirect job creation.

In a typical scenario, regional centers oversee compliance with the EB-5 program, while developers handle project management and construction.

Why EB-5?

1. Concurrent Adjustment of Status: EB-5 investors, their spouses, and children can adjust their status within the United States, eliminating the need for consular processing and potential administrative processing delays abroad.
2. Five-Year Work and Travel Permits: With concurrent adjustment filings, investors can apply for work and travel permits upon filing. USCIS also extended Employment Authorization Document (EAD) validity to 5 years, and has been issuing Advance Parole (AP) documents for the same duration, allowing EB-5 investors and their dependents to work, be self-employed, study, and travel abroad while waiting for their green cards.
3. Current Visa Numbers: The RIA created new set-aside visa categories for rural, high-unemployment, and infrastructure projects. These categories remain current in the Visa Bulletin for any nationality, including individuals born in China and India.
4. Priority Processing for Rural Projects: Under the RIA, rural project I-526E petitions receive priority processing, with decisions typically made within approximately six months.
5. Source of Funds Flexibility: Investors can meet the investment requirement by combining funds from various sources, including personal income, gifts, inheritances, or loans from family, friends, businesses, or banks, provided the funds are legally obtained and traceable. Partial investments are also allowed—typically half before filing the I-526E petition and the remainder within a year—provided all funds are sourced and documented at the time of filing.
6. Adjustment of Status Flexibility: INA 245(k) now applies to EB-5 investors, allowing adjustment in the United States despite certain immigration violations. As long as the violations do not exceed 180 days, investors who failed to maintain their status, engaged in unauthorized employment, or violated the terms of their nonimmigrant visa following their most recent admission to the United States are eligible to file for adjustment of status without having to leave the country.
7. Protection Against Aging Out: Unmarried children under 21 can get a green card through their parent’s investor petition. As long as a child files for adjustment of status before turning 21, they will be protected from aging out under the Child Status Protection Act (CSPA). Even if visas subsequently become unavailable while the primary investor’s I-526E petition is pending, USCIS will process the child’s adjustment application once the priority date becomes current.
   
   For consular processing, CSPA protection for a child involves a more nuanced analysis. Factors include the child’s age when the parent filed the I-526E petition, the duration the petition was pending, when a visa becomes available, and when the child availed themselves of the visa.
8. Eligibility Despite Nonimmigrant Visa Denials: Investors abroad who have been denied nonimmigrant visas due to perceived immigrant intent, who are unable to find companies willing to sponsor them for work visas, or who do not qualify for family-based visas may still be eligible for permanent residence through the EB-5 program.
9. Enhanced Investor Protections: Stricter oversight and transparency requirements for regional centers and developers, including mandatory site visits by USCIS, help reduce fraud risks and safeguard investor capital and immigration benefits.

Why Now Is the Right Time

The EB-5 Reform and Integrity Act has revitalized the EB-5 regional center program with better protections, quicker processing, and new visa set-aside categories without backlogs.

As traditional visa routes become increasingly complex and delayed, EB-5 offers a valuable alternative for investors seeking to secure their green cards while contributing to U.S. economic growth.

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