EB-5, Investor Green Card Program Has Expired – Now What? Here’s What To Expect

The EB-5 Regional Center Program, which allows foreign investors to get a U.S. green card, has expired. The U.S. Congress used to reauthorize this program annually in one-year increments as part of annual government funding legislation. However, on June 30, 2021, the Congress failed to renew this program leaving many prospective investors and green card aspirants in the lurch.

In the last weeks of June, several senators pushed for Congress to reauthorize the EB-5 program. However, objections from Senator Lindsey Graham prevented from the passage of the bill before its June 30 deadline. So, for now the EB-5 program has not been extended. However, since the Bills to extend it as well as upgrade it, are still in Congress, this program remains in the lapsed stage for now but is still pending final verdict from Congress.

What Happens To New & Pending EB-5 Applications?

While the general consensus is that the EB-5 program will be eventually reinstated, what happens to new and potential petitioners? 

  1. Will investors who have invested and awaiting approval of their I-526 petition, still get approval based on the past validity? 
  2. Those who already received approval and are in the last stages of green card processing still get their green card?
  3. Or those who already have a conditional green card based on previous approvals of the EB-5 petition approvals, still receive their permanent green cards?

While it is unclear how the already invested amount will be reimbursed, USCIS has clarified that they will not be accepting any new EB-5 applications after July 1, 2021. This applies to U.S. consulates abroad as well wherein the State Department will not issue immigrant visas to those applying at U.S. consulates under the same category. 

In the meantime, USCIS has issued guidance on how it will treat regional center-related applications and petitions:

Form I-485: USCIS will continue to receive regional-center affiliated Form I-485 adjustment of status applications, but will place these filings on hold until further notice.

Form I-924: Applications for Regional Center designation on Form I-924 received after July 1, 2021 will be rejected and any such applications that are pending as of July 1 will be placed on hold until further notice. 

However, if the application is being filed in order to amend the regional center’s name, organizational structure, ownership, or administration, the application will not be rejected.

Form I-526: Form I-526 immigrant petitions received after July 1, 2021 will be rejected if they indicate that the petitioner’s investment is associated with an approved regional center. Pending petitions with USCIS will be placed on hold until further notice. 

Requests for evidence (RFEs) and other USCIS notices: While USCIS will not be reviewing the responses received for RFEs for affected Forms I-924 and I-526 until the EB-5 program is reauthorized, the agency does suggest responding to any RFE or similar notices by the required due date. Should the program restart, only timely RFEs will be adjudicated.

Form I-829: For foreign nationals already in EB-5 conditional permanent resident status, USCIS has confirmed that Form I-829 petitions to remove conditions on that status will not be affected by the expiration of the Regional Center program.

Original Investment Amount Reinstated

In 2019, the OMB had approved an increase of the EB-5 investment amount from $500, 000 to $900,000 for investments in Targeted Employment Areas (TEA) and from $1 million to $1.8 million for non-targeted employment areas.

However, a recent order from a U.S Federal District Court struck down that regulation and the minimum EB-5 regional center program investment requirement has returned to $ 500,000. The basis of the decision was that the official who implemented the regulation raising the minimum investment requirement was improperly appointed and therefore the regulation was unauthorized. The result is that currently, so long as the EB-5 Regional Center Program still exists, the minimum investment required for an approval of an EB-5 petition is $ 500,000. 

While a lot has happened to the EB-5 program in a short amount of time, there is still hope that things will revert to its normal processing schedules. Now that the investment amount has reverted to the original and lesser $500,000, it is bound to attract a lot more investors to the U.S. While its proponents talk of its advantage to the U.S. economy, all applicants now wait with bated breath to see if Congress will reinstate the Investor visa, Green card program.

What is the US EB-5 Immigrant Investor Program?

By petitioning for a EB-5 investor visa, the US government offers foreign nationals and their immediate family members the opportunity to obtain permanent residency within the US in lieu of investing a certain minimum amount in a business venture in the US and create at least ten American jobs per investment.

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