USCIS protects genuine investors in EB-5 green card program

MUMBAI: The US Citizenship and Immigration Services (USCIS) has updated its policy manual to ensure protection to the ‘good faith’ investors who have participated in the EB-5 (Investment-linked green card) program.
The EB-5 program is also referred to as the investment-linked green card program. It is gaining traction among the Indian diaspora, in particular those who are temporarily in the US on an H-1B visa and seeking a quicker route towards permanent residency (aka becoming a green card holder).With a decades-long queue for an employment-linked green card and, lack of needed reforms for legal immigration, this program is an option available to high-network individuals, wishing to make America their home.
There have been instances where investors despite having invested substantial sums have lost not just their investment but also the hope of getting a green card. Currently, some regional centers are being served notices for not contributing to the integrity fund. Hence, the good faith guidelines will be handy to genuine EB-5 investors.
The EB-5 Reform and Integrity Act, 2022, introduced measures to enhance transparency and compliance, while protecting good faith investors—those who participate with the genuine intention of complying with EB-5 rules—from losing their path to permanent residency (green card) due to misconduct by regional centers or other participants.
USCIS clarifies that any investor who was a knowing participant in the conduct that led to the termination or debarment may not benefit from section 203(b)(5)(M) of the Immigration and Nationality Act (INA). This would be the case if the EB-5 applicant knew of fraud and failed to terminate or report an agent that is engaging in fraud for the EB-5 entity.
USCIS’ policy update provides options to investors to maintain eligibility for permanent residency even if the regional center is terminated or their new commercial enterprise (NCE) in which the investment is made or job creation center (which is funded by the NCE) is debarred from participation in the EB-5 program.
Carolyn Lee, investment immigration attorney, told TOI, “The protections offered intend to cover good faith investors, who through no fault of their own are associated with terminated regional centers or debarred new commercial enterprises. These provisions are intended to confer generous remedies to affected investors, including age-out protection of children, preservation of priority date, and shielding from ‘material change’ challenges to their cases.”
“If the regional center is terminated, the affected investors' NCE will equally have the opportunity to re-associate with another RC in good standing. The new RC may be anywhere in the US. Alternatively, investors may make a new investment in another NCE altogether,” explained Lee.
She added, “If the NCE is debarred, they will equally have the opportunity to re-associate with an NCE in good standing and to make additional investments as needed for job creation — if the prior investment did not create sufficient jobs.”
Mitch Wexler, partner at Fragomen, a global immigration law firm said, "Generally, pre-Reform and Integrity Act (RIA) and post-RIA investors are extended the same protections if their RC or NCE is terminated or debarred due to noncompliance. They both get a chance to reassociate with a new RC or invest in another NCE. In addition, pre-RIA investors may be able to rely on direct and indirect job creation despite termination of their RC. "
"Where the investor's capital remains invested and at-risk with the NCE and the requisite jobs have been or will be created according to their existing business plan, termination of the associated RC for failure to pay the EB-5 Integrity Fund Fee or for reasons related to a different NCE would generally not, by itself, negatively impact the investor's eligibility. USCIS determines on a case-by-case basis whether these investors continue to be eligible despite termination of their RC." added Wexler.
Under the EB-5 route an investment of $800,000 for projects in Target Employment Areas (TEAs), which are rural and high-unemployment areas, and also infrastructure projects, or an investment of $1,050,000 if located elsewhere, entitles the investor to a green-card comparatively quickly. In addition. job creation of at least ten jobs is required. Investments can be made either directly (such as by operating a business) or indirectly via regional centers, which in turn invest in commercial enterprises which initiate specific projects – such as building a hotel. A significant number of investors opt for the regional center route.
The EB-5 program has an annual cap of around 10,000 new visas, with a per country cap of 7%. For fiscal 2024 (ending this September) the cap was set at 9,940. The EB-5 Reform and Integrity Act, 2022 also introduced set-aside (reserved) categories for certain types of investments. These categories include: 20% for qualified immigrants investing in rural areas; 10% for qualified immigrants investing in targeted employment areas (TEAs) and 2% for qualified immigrants investing in infrastructure projects.
USCIS has issued a FAQ for EB-5 investors outlining the procedure to be adopted by investors whose regional center has been terminated or their NCE or JCE has been debarred. It should be noted that project failure, on its own, is not an applicable basis to retain eligibility under section 203(b)(5)(M) of the INA.
USCIS states, “If you wish to have your NCE reassociate with another regional center or make a qualifying investment in NCE because of a project failure separate from termination or debarment, you must file a new petition for classification based on post-RIA eligibility requirements.”
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