U.S. Immigrant Investor visa category or “EB-5”
Our United States immigration lawyers are seeing increased interest in Investment-based visas and that should come as no surprise.
Interest in US business and investment based immigration continues to grow, including the U.S. Immigrant Investor visa category or “EB-5” (at 8 U.S.C. 1153(b)(5)). The reason for this is twofold. The first is that the EB-5 Reform and Integrity Act (RIA) of 2022 and subsequent policy updates in 2023 have increased investor confidence in the program. The second is that geopolitical tensions, the global economy, and issues in certain nations have created an environment in which more people are interested in exploring their options for permanent residence elsewhere. The RIA provided a solid foundation for investor confidence, but 2023 policy updates further refined key aspects, including increased transparency in Regional Center operations and improved processing timelines for specific investment projects. Amendments also included new investor safeguards, such as stricter oversight of funds and more rigorous background checks on project developers. These updates were designed to streamline the program and mitigate fraud risks, fostering greater reliability for prospective investors.
Though this post focuses on recent developments creating renewed interest in EB-5 investment-based visas, most of the reasons for this increased interest holds true for all U.S. investment-based visa categories, including the E-2 Treaty Investor visa and L-1 intracompany transferee visas. A post describing the differences between the EB-5 and E-2 programs can be found here.
Renewed Interest
The global mobility marketplace is always influenced by both geopolitical and national stability. When times are good, interest in options to obtain permanent residence visas in the West tends to slow. Conversely, when times are tough, interest in them tends to increase. As immigration lawyers, we see interest ebb and flow with the state of the world generally and the state of affairs in certain nations specifically.
Unsurprisingly, the current state of the world is leading to considerable uncertainty for many around the globe. Ongoing issues such as the military coup in Niger, inflation spikes in Argentina, and human rights abuses in Myanmar, on top of Russia’s invasion of Ukraine, and various more localized disputes and issues, have left many feeling now is the time to consider alternative residence. These crises highlighted the growing need for global stability, and the U.S. continues to be seen as a safe haven for those seeking long-term residence and investment opportunities. Similarly, decades-high global inflation rates and lingering COVID-related supply chain issues around the world have led many to question whether riding out a possible global recession in their country of residence is the best option. These noteworthy examples are far from the only situations contributing to many people believing that the world is entering an increasingly unstable future.
New EB-5 Regulations
Among the many positive changes to the EB-5 regulations in the RIA are that foreign nationals of countries formerly subject to the visa quota backlogs now have options to invest in certain types of projects that have visa carve-outs with new quotas. Historically, foreign nationals from India and China (the two largest markets for EB-5 in the world) have had quota-related wait times of anywhere from 3 to 8 years before their EB-5 petitions are adjudicated. Now, the RIA, along with the revised EB-5 policy guidelines issued by the USCIS in 2023, has carved out visa allotments for foreign nationals who invest in infrastructure projects, rural projects, and high-unemployment area projects without having to wait in line. These guidelines expanded on the RIA by clarifying which projects qualify for visa priority, such as those in rural or high-unemployment areas. Another key feature of the 2023 guidance was enhanced reporting requirements for Regional Centers, which must now provide quarterly updates to ensure transparency for investors. Additionally, the new guidelines introduced stricter enforcement measures against non-compliant Centers, leading to a more secure investment climate.
In addition, the RIA significantly increased investor protection measures. The lion’s share of the responsibility for demonstrating compliance with the RIA has been rightfully put on Regional Centers: statutorily created EB-5 investment project offerors. The new compliance and reporting obligations contained in the RIA were enacted into law to combat the EB-5 program’s rather well-known and embittered history of investor fraud. As of 2023, further amendments have been added to tighten scrutiny on Regional Centers, including increased oversight of escrow accounts and investor tracking tools. This amendment ensures that Regional Centers maintain better control over investor funds, reducing the risk of mismanagement. The introduction of investor tracking tools allows both investors and the government to monitor the progress of funds throughout the project’s lifecycle. These changes were implemented to foster accountability and reduce the risk of financial misappropriation, further strengthening the integrity of the EB-5 program.
Practical Changes Since 2023
Beyond regulatory changes, practical shifts have also occurred. In 2023, the USCIS increased EB-5 filing fees to reflect the costs of processing petitions more thoroughly. Investors should also note that processing times for rural projects have improved due to priority handling initiated in late 2023. The fee increase was designed to cover the costs of enhanced background checks, site visits, and fraud detection measures. This fee hike also aims to expedite the overall adjudication process, reducing long wait times for investors and improving the program’s efficiency.
Final Thoughts
The world is becoming increasingly volatile and uncertain. Fortunately, there are many options for people interested in using a business or an investment as a basis for U.S. immigration. For those interested in EB-5 investments, the RIA (EB-5 Reform and Integrity Act) and its subsequent updates since January 2023 arrived just in time to reinvigorate investor confidence when the state of the world is such that the interest in investment-based visa options is increasing.
