EB-5 Grandfathering

A "grandfathering provision" is a provision in a law or regulation that allows certain individuals or entities to be exempt from new or changed requirements, based on their prior status or actions. The provision is intended to "grandfather in" those who were in compliance with the previous requirements and would be unfairly impacted by the new or changed requirements as they entered into a binding agreement under different regulations.

In the context of EB-5 grandfathering means that certain investors who filed their petitions under different regulations would still be operating by and be adjudicated by the EB-5 regulations that were in effect at the time of their filing, and not the new regulations that have since passed.

Using the EB-5 Reform and Integrity Act of 2022 (RIA) as the most recent example of grandfathering, investors who filed their I-526 petitions before the enactment of the RIA may still be eligible for the program with a $500,000 minimum investment amount even though the new regulations increased the minimum amount to $800,000. Their petitions would still be adjudicated under the regulations that were in effect at the time of filing.

Another forward-looking example of grandfathering and the RIA includes the grandfathering for petitioners who have filed their I-526E petitions prior to September 30, 2026, the end of the extension of the Regional Center Program. Such investors will be able to complete the EB-5 process even if the program is not extended and were to lapse after that date.

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