New USCIS guidance on maintaining EB-5 investments further incentivizes individuals born in India to avail themselves of the program, if they have the resources to do so.
The EB-5 visa program allows investors to pursue a green card based on an investment of $800,000 or $1,000,000 into a qualifying US business, if the investment creates 10 jobs. Congress passed the EB-5 Reform and Integrity Act in 2022 that changed some of the underlying rules of the green card category. USCIS released guidance in October, 2023 confirming that investors now only need to maintain their investments in the qualifying business for two years.
Due to exceedingly long processing times, investors previously had to maintain their investments for as long as ten years. This confirmed change dramatically changes the appeal of the EB-5 program, especially for Indian investors.
The overall EB-5 process can take 10 years to complete due to exceptionally long processing times. There are three stages to the process. The first stage, the I-526, demonstrating the qualifying investment, currently takes USCIS an astounding 55.5 months to review. Subsequent to this review, individuals qualify for a conditional green card, which lasts two years. At the end of the conditional green card period, the investor must file an I-829 to remove conditions, which takes an additional 66 months to review. Altogether, the overall EB-5 timeline is 11 years.
Prior to the EB-5 Reform and Integrity Act, an EB-5 investor had to maintain the EB-5 investment for the totality of the processing timeline. Given that EB-5 projects often are structured to provide below market returns, this made the EB-5 process unattractive to some investors as their money would be locked up in a bad investment vehicle for a long period of time.
With the new guidance, individual investors only need to maintain the investment for two years. With that in mind, the prospect of getting mediocre returns on an investment for extended periods of time has ended.
Investors who are inside the US can concurrently file for adjustment of status with an EB-5 I-526 petition. This is a desirable escape hatch from interminable wait times in the EB-2 and EB-3 categories for individuals born in India.
To learn more, please reach out to your Meltzer Hellrung attorney.
