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How the Reform and Integrity Act Affects the EB-5 Immigrant Investor Program and EB-5 Processing Time

While the U.S. Citizen and Immigration Services’ (USCIS) EB-5 Immigrant Investor Program has long been a draw for eligible foreigners looking to invest in and operate a business in the United States ever since the program’s creation in 1990, U.S. Congress’ new EB-5 Reform and Integrity Act of 2022 has enacted major changes to the program’s capital risk requirements that could play a huge role in the outcome of new EB-5 applicants’ green card process.

Under the program’s previous provisions, EB-5 applicants were required to keep their capital invested at risk in their approved new commercial enterprise (NCE) in the United States until their two-year conditional permanent residency came to a close. But as the application processing wait times began to grow longer and longer in the years following the EB-5 visa program’s enactment, the impact of keeping this capital locked in the United States has become increasingly strenuous for foreign investors. 

By following the EB-5 requirements by the book and investing money into the United States before submitting their green card application, investors’ funds could potentially remain tied up in the United States for years before their green card was finally approved. Following through on the residency approval would then trigger the two-year conditional permanent residency capital investment provision, subsequently putting EB-5 applicants’ capital risk to last much longer than the program’s intended two-year timeline.

This also meant that many foreign investors would have to “redeploy” or reinvest capital into the NCE while waiting for the end of their conditional permanent residency, despite already having their money invested in the United States for years on end.

Thanks to the new EB-5 Reform and Integrity Act of 2022, the redeployment of capital issues may have finally come to an end – for new applicants, at least. Foreign investors applying for the EB-5 program will now need to keep their capital at risk in the United States for only two years after initial investment, rather than keep it there until the end of their conditional permanent residency.

Unfortunately, those who applied to the EB-5 program before the Reform and Integrity Act was enacted will still need to follow the program’s former requirements for their application to be deemed eligible under the EB-5 visa requirements.

The exact details of when EB-5 applicants’ two-year timer starts are unknown at the moment, but according to industry experts, it could be one of three events: when the investor’s capital is first given to the investor’s NCE; when the capital is distributed to job-creating entities by said NCE; or when the job-creating entity spends the capital with resulting job creation.

The timeline between these three events may vary greatly, and as such, consulting with an immigration expert could be the make or break factor from keeping your EB-5 green card application process moving forward as smoothly and efficiently as possible.

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