The EB-5 Reform and Integrity Act of 2022 (RIA) became law March 15, 2022. EB-5 business plan writer Suzanne Lazicki has done a review of where we stand with the regulations today, a year later. Limited progress has been made thus far. And much more that needs to be done to fully implement the law and provide clarification to regional centers, stakeholders, and investors on the new requirements.
Policy manual & USCIS website updates
USCIS has only updated chapters 1 and 2 of the Policy Manual EB-5 section 6G. The agency has yet to revise the chapters 3–6; these chapters address the adjudication of Forms I-526 (investor petition) and I-829 (removal of conditions on permanent residency), as well as regional center reporting requirements.
While some new EB-5 guidance has been added to the USCIS website, the site does not provide a list of regional centers are approved under the RIA. And Lazicki reports that the agency website still has outdated and thus inaccurate material posted.
All EB-5 forms required by the RIA have been issued or revised. But USCIS has yet to provide answers to the second round of public comments on Forms I-526E (regional center investor petition) and I-956 (regional center application).
Change to investment sustainment
While the RIA has indicated that there is a change to the requirements for capital sustainment, suggesting that capital need only be sustained at risk for two years and is no longer coupled with conditional permanent residency, UCSIS has yet to provide clarification on this vital matter. The April 25 stakeholder meeting will address this issue.
Unanswered questions on regional center compliance
Do RIA requirements apply to previously approved regional centers which are not soliciting any post-RIA projects or investors? The industry awaits an answer and the EB-5 stakeholder meeting should address this major question. It is also unknown whether the annual reports of such regional centers need to address capital raised before the RIA.
Guidance on regional center geography and the prohibition of foreign involvement in a regional center has yet to be published.
Guidance on regional center compliance procedures remains outstanding as USCIS has not reported decisions on I-956 regional center applications. It is unknown whether regional center policies and procedures must be provided or just described.
Similarly, guidance on I-956 regional center annual statements has yet to be issued. The annual statement deadline has been extended until such guidance is shared.
Regional center project requirements and guidance are also outstanding as almost all I-956F project applications have yet to be adjudicated.
Requirements and guidance are also outstanding for persons involved with a regional center (Form I-956H), and direct and third-party promoters (Form I-956K) as there are no reported decisions for either application.
Other guidance that remains outstanding
Regulation for parameters on capital redeployment and the prohibition on using EB-5 capital for publicly available bonds are not yet published.
USCIS still needs to state whether stand-alone direct investors need to use fund administration.
New reserved visa categories
The Visa Bulletin and Annual Report of the Visa Office show new visa categories as required by RIA. However, no reserved visas were issued in FY 2022 due to as processing times could not allow for decisions on new filings that quickly. The year-over-year carryover of unused reserved visas remains unclear.
For the infrastructure reserved category (2% of the EB-5 visa total) USCIS has yet to provide requirements as to what qualifies as an infrastructure project.
The bane of EB-5, protracted processing times, was addressed by the RIA which mandated that a study of fee levels required for timely processing be completed within a year of enactment. However, this fee study has yet to be done.
See Suzanne Lazicki’s blog “RIA Implementation Status, one year later”