By Simone Williams., Esq., Managing Partner, Williams Global Law, and Charles Kaufman, Esq. Shareholder, Lexcuity PC
Among its myriad changes to the decades-old EB-5 immigration investor program, the EB-5 Integrity and Reform Act of 2022 (the “Reform Act”) contains a noteworthy provision that allows applicants to concurrently file an EB-5 investor petition and an adjustment of status application. This ostensibly streamlined new process has sparked some controversy, as some legal and business professionals have debated whether it presents more risks than benefits for applicants. The rule change seems intended to serve the Reform Act’s overall goal of simplifying the procedures to create more jobs by providing permanent residence to investors seeking to contribute wealth to the U.S. economy. While there are drawbacks to the option of concurrent filings, we find that on balance it can offer significant benefits to EB-5 applicants who are present in the U.S. on non-immigrant status and wish to obtain permanent U.S. residency.
The U.S. Citizenship and Immigration Services (“USCIS”) administers the EB-5 immigrant investor program (“EB-5 Program”), allowing investors (along with their spouses, and their unmarried children under the age of 21) to file for a U.S. permanent residency (otherwise known as a “Green Card”). To file, persons must meet several requirements. According to USCIS, a filer must “make the necessary investment in a commercial enterprise in the United States ”; and must “plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers . Underneath the umbrella of the EB-5 Immigrant Investor Program, first signed into law in 1990, the “Regional Center Program…sets aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS.” .
On March 15, 2022, President Joe Biden signed the Reform Act as part of his all-encompassing $1.5 trillion “Consolidated Appropriations Act.” Congress reauthorized the EB-5 Regional Center Program for five years, ending on September 30, 2027. Along with the reauthorizing the Program, the Reform Act made numerous changes intended to modernize the EB-5 Program and reduce the occurrence of fraud. Most interestingly, an amendment to Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) allows concurrent filing of initial EB-5 petitions and applications for adjustment of status (“AOS”).
To be considered for permanent residency under the EB-5 program, an EB-5 investor must submit either Form I 526, the Immigrant Petition by Standalone Investor or Form I 526E, the Immigrant Petition by Regional Center Investor . In the past, investors had to wait for USCIS to approve their I-526 applications before they filed with a different agency – the U.S. Department of State – to commence residency under the EB 5 Program. Applicants outside the U.S. are required to apply for an immigrant visa at a U.S. embassy or consulate, while applicants within the U.S. (who entered the U.S. lawfully) may be eligible to adjust their statuses from non-immigrant to immigrant by filing Form I-485 (Application to Register Permanent Residence or Adjust Status) without leaving the U.S. Only upon approval of the second application could an investor begin conditional U.S. residency as a first step to achieving permanent, unconditional U.S. residency after satisfying the job-creation requirements of the EB-5 Program….
