Immigration Update: USCIS Responds to EB5 Investor Visa Changes

USCIS has come out with its response to a recent court case that lowered the EB5 investment amount from $900,000 to $500,000.  In this article, we will share with you the details about USCIS’s response and what this means for you if you are planning on pursuing an EB5 investor visa.

We are Ashoori Law, led by Michael Ashoori, a U.S. immigration lawyer based in Los Angeles, California.  At our law firm we work with clients from all over the world, and we regularly post articles and videos to make sure that you are up to date with the latest immigration news.  If, after reading this article, you have more questions, then we invite you to contact us at Ashoori Law.  Feel free to call us at +1-818-741-1117 or you may schedule a free consultation by clicking this link.

The EB5 Investor Visa – the Basics

The EB5 investor visa is a green card option for investors.  The visa allows investors to get a green card for themselves, their spouse, and their children based on making an investment in a U.S. business and creating jobs for U.S. workers. 

Historically, for several years, the required minimum investment amount to qualify for an EB5 visa was $500,000.  However, in November 2019, the minimum required investment amount was increased to $900,000.

The Lawsuit Over the Increased Investment Threshold

When the investment amount went up, a company by the name of Behring Regional Center filed a lawsuit against the Department of Homeland Security, alleging that the increase in the investment threshold was improper.  Then, on June 22, 2021, the federal judge overseeing the case sided with the plaintiffs and agreed that procedural errors were made when the Department of Homeland Security enacted the increased investment amount in 2019.  Accordingly, the judge set aside the increased investment threshold.

This was wonderful news for thousands of prospective EB5 investors because the increased investment amount had a chilling effect on the EB5 program.  Indeed, many people were doing all that they could just to put together enough funds to get the $500,000 threshold.  The $900,000 threshold, then, made an EB5 visa out of reach for many thousands of investors.

What Does the Court’s Judgment Really Mean for Prospective EB5 Investors?

Many people had questions regarding whether USCIS would accept the court’s changes, or whether USCIS would still require investors to make a $900,000 investment.  But, the confusion is over.  USCIS has officially updated its website with a response to the court’s decision.  The website provides as follows:

On June 22, 2021, the U.S. District Court for the Northern District of California, in Behring Regional Center, LLC vs. Wolf, vacated the immigrant investor program modernization final rule.  While USCIS considers this decision, we will apply the EB5 regulations that were in effect before the rule was finalized on November 21, 2019, including no priority date retention based on an approved form I-526.

USCIS added that the required standard minimum investment amount is $1 million, and the minimum investment amount for investment in a targeted employment area is $500,000.  In sum, USCIS has made it clear that, for the time being, they are accepting EB5 investments with the reduced $500,000 investment amount. 

This is wonderful news.  Thousands of EB5 investors now have the rare opportunity to pursue a green card through the EB5 program at the reduced pre-November 2019 amount. 

Will This Change Become Permanent?

It is very likely that this window of time where prospective EB5 investors will be able to qualify for the pre-November 2019 investment amounts will be limited.  That is because when the federal judge invalidated the rule, the judge did not prevent the Department of Homeland Security from correcting the errors that it made when it promulgated the new rule, which increased the investment amount. 

Simply put, the judge left it open for the Department of Homeland Security to re-enact that increased-investment-threshold rule.  And, we unfortunately believe that the Department of Homeland Security will re-enact the rule, and increase the investment threshold again. 

So, how long do investors have to qualify for EB5, based on a $500,000 investment? If this is something that you are considering doing, it is probably a good idea to act sooner rather than later.  Remember though, that $500,000 investment threshold is only if you are going to invest in a targeted employment area, which is an area that is either experiencing high unemployment or is designated as a rural area.

Another Update – The EB5 Regional Center Program Has Lapsed

Until recently, there were two types of investments to qualify for an EB5 visa.  You could invest by making a direct investment, or you could make a “regional center investment.”  Well, the regional center component of the EB5 program has lapsed.  So, as of now, for anybody considering an EB5 visa, the only available option is a direct investment. 

What is the difference between a direct investment and a regional center investment?

Generally, a direct investment is any type of an investment that is made into a business, that is not a regional center.  For example, if you go out and start your own business and invest in your own business, if you purchase an existing business, or if you partner with somebody to do a startup of some kind, then you are very likely going to be falling into that category of direct investments.  By contrast, a regional center investment is giving your money to a regional project, like a performance space, that pools investment money from various sources.

Conclusion

We have covered the fact that the current investment threshold for an EB5 investor visa went back down to $500,000 for investments in targeted employment areas.  Yet, you should not wait too long, because that investment threshold may go back up to $900,000 again.  Also, you are now aware that the regional center investment option for EB5 visas has lapsed.  So, you are likely only going to be able to obtain an investor visa by making a direct investment in a business for the foreseeable future. 

My name is Michael Ashoori and I’m a U.S. immigration lawyer and the founder of Ashoori Law. As an immigration lawyer, I help families, professionals, investors, and entrepreneurs get visas, green cards, and citizenship to the United States.  If you have any questions, feel free to schedule a free consultation by clicking this link.