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Dec 14th, 2019

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New EB-5 priority date retention explained & who it helps most

EB-5 expert Suzanne Lazicki analyses what the new rule’s priority date retention means for certain investors. It may now be a boon to many investors who cannot opt for redeployment and may lose their chance for a Green Card due to their regional center being terminated or changed. Going forward with a new project, they could still keep their original place in line.Lazicki explains that while redeployment is a possibility for many investors facing material change, it is not an option for those applicants whose regional center is either terminated or changing. These investors stand to lose their opportunity for an EB5 Green Card. However, the new regulations may allow them to keep their priority date — and keep their place in line — in the event that they want to file a new I-526.For an investor to keep his or her initial priority date going forward with a new I-526 petition, the following conditions must be satisfied:

  • the applicant has an approved I-526
  • the applicant is not yet a conditional permanent resident
  • if I-526 approval was revoked after approval, it was not due to fraud or wilful misrepresentation of a material fact by the petitioner, or because DHS approved the petition based on a material error

Who does priority date retention help most?

Lazicki estimates that over 24,000 investors have I-526 approval and are waiting for a Green Card, and thus may be eligible to take advantage of priority date retention. She states that the most typical applicant to take advantage of this new policy will be someone coming from a backlogged country, with an older priority date, and who is likely to lose their I-526 approval — and who still has the capital to invest in a new EB5 project.

Other restrictions ||abc|| notes regarding priority date retention

  • no timeline restrictions on when the previous I-526 was filed
  • only applies for the same applicant
  • priority dates cannot be transferred to other visa categories
  • while the earlier date may be retained, the new I-526 filing must satisfy the new rules (such as investment amount and TEA restrictions)
  • if fraud occurred during the original I-526 filing, it can only have been perpetrated by the regional center or project — investor fraud does not qualify
  • the rule does not aid in moving the capital from the initial investment to the one associated with a new I-526 filing

Read Lazicki’s thorough article on redeployment, material change, ||abc|| priority date retention (with a very helpful flow chart that clearly defines an investor’s options in multiple scenarios)

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