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EB-5 Investor Program — January 2022 Update

Yesterday, the U.S. government filed an “Unopposed Motion for Voluntary Dismissal” in the U.S. Court of Appeals for the Ninth Circuit on their appeal of a June 2021 decision of a lower district court that invalidated the implementation of the November 2019 EB-5 Modernization Rule. That rule had raised the minimum investment amount from $1 million to $1.8 million and, from $500,000 to $900,000 for targeted employment areas (TEAs).

Reducing the investment amount is welcome news for the EB-5 industry that has been stymied by this regulation. Most importantly, this withdrawal of appeal confirms the minimum investment for investors who create ten jobs in a Targeted Employment Area (TEA) is back to $500,000. It also confirms that states have the authority to designate areas as a TEA.

This decision has no impact on the reauthorization of the EB-5 Regional Center program. EB-5 investors should know this dismissal does not impact the two biggest issues in EB-5, that is the Regional Center reauthorization, or whether USCIS will continue to hold pending Regional Center I-526s or I-485s in abeyance until reauthorization. We hope to have some news on these two issues soon, so stay posted.

At this time, “direct” EB-5 remains an option for immigrant investors seeking green cards for themselves and eligible family members (spouse and unmarried children under the age of 21). “Direct” EB-5 cases can require significantly more effort on the part of the immigrant investor than a Regional Center case, and it’s important to use experienced immigration counsel to file an approvable case. Holding 10 full time workers for the requisite period is difficult and if the count falls below 10, that can be fatal for an application depending on which stage one is at.

We do anticipate that either USCIS or Congress will seek to increase the minimum investment amount back to a higher number in the near future, hopefully in tandem with reauthorization of the Regional Center program.

If you have EB-5 questions or are interested in pursuing a direct EB-5 petition now, please contact a WR Immigration attorney today to schedule a consultation.

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