What Does The Reformed EB-5 Investor Visa Mean For Investors?

American President Joe Biden signed the omnibus spending bill on March 15 and it included the EB-5 Reform. What does it stand for exactly? The EB-5 Reform and Integrity Act is a bipartisan legislation introduced in 2019 and again in 2021 in Congress with the view of reforming the EB-5 Immigrant Investor federal program, which provides green cards to certain foreign investors. How is it going to work now in the context of Indian investors?

Immigration law expert and Founder & Principal Attorney, Gehis Immigration & International Legal Services, Mr. Naresh M Gehi explains, "The employment based EB-5 investor visa plan was first created in 1990 with a specification of a set standard amount of Rs $1 million for an investment whereas it was standardized at $500,000 for TEA- targeted employment area."

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Categorically speaking, he says, the EB-5 investor visa is characterized by two distinct programmes : The Stand Alone programme which does not have an expiration duration. The Regional Center programme which has an expiration limit and requires regular reauthorization. The latter holds more popularity amongst the EB-5 investors because the Regional Center programme takes into account, the full time jobs by the enterprises as well as the investments and indirect job creation done by the applicants.

However, since 2021, says Naresh M Gehi, several visas of those who had invested under the Regional Center programme lapsed due to the refusal of US citizenship and immigration services (USCIS) to process them. This was due to a lawsuit that claimed statutory authorisation was not a mandatory requirement for the adjudication of visas and citizenship green cards.

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Post the conflict regarding the legislations related to the Investor Visa programme, it has been declared that the programmes that expired more than eight months ago will be funding the federal government for the remaining year as part of the spending package. He adds, " As for the lapse of the reauthorization of the Regional Center programme concerning the investments made, the green cards will further be determined under the US citizenship and immigration services - Homeland security. Additionally, while the investment amount will rise up to $800,000 for high employment investments and rural areas, it will be up to $1,050,000 for other ventures."

He informs that two new fees will be created to cover the costs of a new integrity enforcement fund created under the new legislation. The fund will cover the costs of audits and site visits and to ensure that participants comply with immigration laws. The annual fee is around $20,000 (to be covered by each regional center) and there will be an additional $1,000 investor filing fee.

About the estimated processing time for EB-5 applications, he says, "The Department of Homeland Security (DHS) has to determine how to achieve processing time goals of under six months for I-526 petitions and under one year for I-829 petitions. The DHS and USCIS are expected to attend to this important issue and to work hard to resolve it."

Naresh M Gehi is often asked how the adjustments of the visa status can be done after filing for the EB-5 program?

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He answers, "The adjustment of status under the EB-5 program will be done concurrently, which means that the investor petition and the I-485 adjustment of status application will be filed together. This will help the investor to continue to stay in the United States with their spouse and children under the age of 21, until the investor application is approved. He/she can apply for a work permit, get a social security number, a driver's licence and obtain a travel document to travel outside the United States until a decision is made on the application. This is a big advantage of the new law especially because in the past, the I -526 investor visa petition had to be approved before the investor was allowed to apply for an adjustment of status. The biggest disadvantage of the old law was that the USCIS was taking several years to adjudicate the investor visa petition which made life very difficult for investors who generally had short term visas to stay in the United States."

The new legislation, he says, aims to provide greater protections to investors and prohibits the denial applications based on the expiration of the Regional Center program and directs USCIS to continue to allocate green cards to applications filed before September 30, 2026. The Act also allows the investors to complete the permanent residence process despite termination or debarment of an EB-5 entity or Regional Centre programme."

Naresh M. Gehi is an Indo-US Lawyer and the Director of Gehis Immigration and International Legal Services based in Mumbai, and is an expert in complex Immigration strategies, foreign investments, optimization of tax benefits, cross-border investment and tax issues. All views/ opinions expressed in the article are of the author.