On March 15, 2022, the EB-5 Reform and Integrity Act of 2022 (RIA) became law as part of the Consolidated Appropriations Act, 2022 (Public Law No: 117-103). One year later, how far have we come? How much of the law has been implemented?
The following bullet points give status as of March 31, 2023 for steps that need to be taken for RIA implementation.
Updating policy, forms and guidance based on the new law
- USCIS Policy Manual: Incomplete. On October 7, 2022, USCIS updated only the introductory Chapters 1-2 of the Policy Manual EB-5 section 6G, while EB-5 Chapters 3-6 remain untouched. The chapters still still not updated with RIA-compliant policy cover I-526 adjudication, I-829 adjudication, and regional center designation and reporting requirements.
- USCIS website: Incomplete. Some new EB-5 content has been added to the USCIS website over the course of the year, and some outdated content remains in the mix. It’s still impossible to go to the USCIS website to find out which regional centers are approved or active under the new law.
- EB-5 forms: In Process. All EB-5 forms required by the new law have been published or revised but remain subject to change. (Indeed, new versions of all I-526 and I-956 were just published today.) USCIS has yet to respond to (and for I-956, even to post) the second round of public comments to the Federal Register on I-526E and I-956.
Prescribing regulations required by the new law
- Regulation for parameters on capital redeployment: Not done. (RIA does not state a deadline for this regulation.)
- Regulations prohibiting foreign involvement in a regional center: Not done. (The RIA deadline, 270 days after the date of enactment, has passed.)
- Regulation to ensure that EB-5 capital is not used on publicly available bonds: Not done. (RIA does not state a deadline.)
Monitoring and enforcing regional center compliance with new requirements
- Clarify how RIA requirements apply to previously-approved RCs not active under RIA: Not done. The EB-5 stakeholder meeting previously scheduled for March 20, then delayed to April 25 is slated to address this question. (UPDATE: The April 25 meeting did not after all address expectations for regional centers with pre-RIA but not post-RIA investors.)
- Review and approve regional center compliance procedures: Status Unknown. USCIS has not reported any decisions on I-956 Regional Center Applications. (We hear anecdotally about approvals received, but USCIS does not report I-956 approvals or denials on the USCIS Regional Center page or the USCIS Immigration and Citizenship data page.)
- Vetting and background checks of persons involved with regional centers: Status Unknown. USCIS has not reported any decisions on I-956H forms.
- Review Regional Center Annual Statements and Certifications: Not done. Form I-956G were not filed for 2022 because “USCIS is extending this deadline until we publish guidance that clarifies the requirements of these forms.” Such guidance has yet to be published.
- Review regional center projects: Status Unknown. USCIS has not reported any decisions on I-956F Applications for NCE approval.
- Review registrations by direct and third party promoters: Status Unknown. USCIS has not reported any decisions on I-956K registrations, and has not made any lists publicly available.
Implementing visa availability changes
- Reshuffle visa availability to reserve visas for new TEA investment: In process. The Visa Bulletin and Annual Report of the Visa Office show new visa categories as required by RIA. Zero reserved visas were issued in FY2022, due to slow USCIS processing.
- Carryover of unused reserved visas: In process. The FY2023 Annual Limit report says cryptically “The employment chart (above) does not include numbers carried over from the previous fiscal year in the EB-5 category.” (UPDATE: the April 26, 2023 DOS/AILA Liaison meeting (question 22) confirms intent to carry over visas.)
- Timely Processing Fee Study: Not done. (RIA gave a deadline of 1 year from the date of enactment to complete a study of fees levels required to achieve timely processing goals, and this study has yet to be published. The USCIS Fee Study does not address timely processing for EB-5.)
- Announce appropriate channels of communication: Done. The bottom of the EB-5 Support page has been updated with Channels of Communication.
- Publish Log of communications: Not done. The FOIA page for USCIS does not show a log of communications with Congress regarding EB-5.
- Transparency regarding Publication of Information: Mixed. (For example, we know that USCIS is having court-ordered quarterly meetings with litigation plaintiffs. So far one set of meeting minutes has been published, and publication happened more than 30 days after the meeting.)
- Other Rule-Making: Not done. In response to I-956 comments in the Federal Register, USCIS indicated in December 2022 that it could not yet answer questions about but “may consider rule-making to address” each of the following issues:
- Evidence to establish regional center geography;
- Whether regional center policies and procedures need to be provided or only described;
- What circumstances require an I-956F amendment;
- Whether stand-alone investors need to use fund administration;
- The definition of an infrastructure project;
- Whether regional center annual reports need to cover funds raised prior to RIA.
- Implementing the RIA change to the sustainment requirement and investment period: Not done, but the USCIS April 25 stakeholder meeting is slated to discuss the topic. (UPDATE: USCIS stated at the 4/25 meeting that they were after all “unable to discuss” the topic yet, while “USCIS is engaged in ongoing efforts at the immigrant investor program office and across the agency to ensure that when we do have updates, we’re equipped to provide the EB-5 stakeholder community with clear guidance.”)