On October 6, 2022, U.S. Citizenship and Immigration Services (USCIS) published a policy alert, announcing that agency is updating the Policy Manual to incorporate changes resulting from the EB-5 Reform and Integrity Act of 2022 (“RIA”). This is the first time that USCIS updated its policy manual since the RIA became law on March 15, 2022.
Policy Highlights from the Alert:
- Incorporates changes to investment amounts and targeted employment area definitions, as well as new definitions for infrastructure projects, capital, and new commercial enterprise resulting from the EB-5 Reform and Integrity Act of 2022 for petitions filed on or after March 15, 2022.
- Aligns USCIS policy on further deployment with the new statute.
- Explains that, by statute, for petitions filed on or after March 15, 2022, investors pooling their investments with other EB-5 investors must do so through the Regional Center Program.
- Reflects the statutory requirement that, on or after May 14, 2022, investors may only file new regional center-based petitions (Immigrant Petition by Regional Center Investor (Form I-526E)) once the regional center has filed an Application for Approval of an Investment in a Commercial Enterprise (Form I-956F) and that a specified percent of the claimed jobs must be direct jobs, which can be estimated by economically and statistically valid methodologies. In addition, indirect jobs may include those estimated to be created under a methodology that attributes jobs to prospective tenants provided they are not relocated existing jobs.
- Incorporates new statutory provisions for redemption provisions and lawful source of funds for petitions filed on or after May 14, 2022.
- Incorporates statutory changes permitting concurrent filing for adjustment of status, priority date retention, and eligibility for the INA 245(k) exemption.
- Revises the name of the Form I-526 from Immigrant Petition by Alien Entrepreneur to Immigrant Petition by Standalone Investor and adds references to the Immigrant Petition by Regional Center Investor (Form I-526E).
Summary of Changes from the Alert:
Affected Section: Volume 6 > Part G > Chapter 1, Purpose and Background
- Removes all three alert boxes.
- Revises Section A (Purpose) in full.
- In Section B, retitles Subsections 2 (now Creation of the Original Regional Center Program) and 3 (now Program Evolution) and makes revisions throughout.
- Revises Section C (Legal Authorities) to include legislative changes.
- Makes technical revisions to statutory, regulatory, and other citations throughout footnotes.
Affected Section: Volume 6 > Part G > Chapter 2, Eligibility Requirements
- Removes all three alert boxes.
- Makes substantial revisions throughout to clarify eligibility for petitions filed before and after
the effective date of the provisions in the EB-5 Reform and Integrity Act of 2022.- Makes technical revisions to statutory, regulatory, and other citations throughout footnotes.
Affected Section: Volume 7 > Part A > Chapter 3 > Section C, Concurrent Filings
- Revises the third bullet point.
Affected Section: Volume 7 > Part A > Chapter 6 > Section C > Subsection 3, Priority Dates
- Removes alert box.
- Under the subheading “Using Earlier Priority Dates,” replaces last sentence in first paragraph and removes the footnote after the first bullet in the list under the subheading “When Earlier Priority Dates May Not Be Used.”
- Removes subheading “For Employment-Based 5th Preference Cases” and related content.
Affected Section: Volume 7 > Part A > Chapter 7 > Section B, Child Status Protection Act Applicability
- Under subheading “Effective Date,” revises form name in fourth bullet and adds new fifth bullet.
Affected Section: Volume 7 > Part B > Chapter 2 > Section C > Subsection 1, General Eligibility for an Immigrant Visa
- Revises fourth row and adds new fifth row in table.
Affected Section: Volume 7 > Part B > Chapter 8 > Section E, Employment-Based Exemption under INA 245(k)
- Under Subsection 2 (Employment-Based Applicants), adds a fourth bullet point.
Affected Section: Volume 8 > Part G > Appendix: Applicability of INA 212(a)(4) to Employment Based Adjustment of Status Applications
- Replaces “Fifth: I-526 Immigrant Petition by Alien Entrepreneur (EB-5)” with “Fifth: Investors” on the last row of the table and updates the form name in accordance with legislative changes in the related footnote.
Read the full USCIS Policy Alert here.
