US EB-5 golden visa: A year in review

With positive regulatory reforms increasing transparency and security for foreign investors, 2022 was a notable year for the EB-5 immigrant investor programme. The US golden visa remains one of the most sought-after routes for immigration to the US, especially among residents of the UAE and neighbouring Gulf countries. “We anticipate that the EB-5 programme will remain in high demand in 2023 and will continue to be the preferred route of immigration to the US,” says Shai Zamanian, legal director of The American Legal Center, the leading EB-5 experts in the region.

What is the EB-5 programme?

Created by the US Congress in 1990 with the intent of boosting the US economy, the EB-5 programme allows families to obtain their US green cards with an investment of $800,000 in a government-pre-approved project. Along with the main applicant, each dependent family member, including spouse and children under 21 years of age, will receive lawful residency and their green cards, allowing them to freely work, live, and travel in the US. The investment amount is repaid to the investor after the expiry of the investment term, which is approximately five years from the initial date of investment.

Key developments for the EB-5 programme in 2022

With the passage of the EB-5 reform and integrity act (RIA) in March 2022, the EB-5 programme experienced several key developments 2022. The new EB-5 legislation increased the security and transparency of the program for EB-5 investors by introducing further oversight of key players in the EB-5 industry. The key reforms include greater stability for the programme through a 5-year reauthorisation, concurrent filing allowing EB-5 applicants to live and work in the US while waiting for their EB-5 cases to be processed, innocent investor protections heightened security through greater government oversight, and introduction of reserved visa categories allowing for expedited processing of EB-5 applications.

Greater stability

The 5-year reauthorisation of the EB-5 programme is a positive indicator of the US government’s confidence in the programme and its role in stimulating the US economy. More importantly, the RIA introduced a grandfathering provision, meaning that petitions filed on or before September 30, 2026, will continue to be processed by the United States Citizenship and Immigration Services (USCIS) even upon the expiration of the EB-5 programme. The grandfathering provision creates an added layer of security for existing EB-5 investors as they can rest assured that their files will only be processed through the application of rules and regulations that were in effect at the time their file was sent to USCIS. Essentially, this means that existing EB-5 investors will not be affected by future legislative changes to the programme. For instance, if there is a price increase, existing investors are not required to pay a higher amount and can receive their US Green Cards with their $800,000 investment.

Concurrent filing

Introduced by the RIA, concurrent filing allows EB-5 investors to live, work, and study in the US while they wait for their green card applications to be processed by USCIS. Certain EB-5 investors residing in the US can now submit their adjustment of status petition (Form I-485) simultaneously with their EB-5 application (Form I-526E). Families can greatly benefit from concurrent filing as they can now begin living and working in the US immediately upon filing, rather than having to wait to receive their US green cards before starting their lives in the US.

Innocent investor protection

The RIA provides protections for existing good faith EB-5 investors. If the project or the company that they have invested in is terminated, existing EB-5 investors are provided six months to rectify the situation by finding a new sponsor for their project or by investing in a new project. This allows innocent investors to still avail the immigration benefits of obtaining their US green cards through the EB-5 programme.

New EB-5 visa category

Visa set-asides are a new category of reserved visas under the EB-5 programme. The RIA provides that of the visas made available for the EB-5 programme in each fiscal year, 10 per cent are reserved for applicants who invest in high-unemployment areas, 20 per cent are reserved for applicants who invest in rural areas, and 2 per cent are reserved for applicants who invest in infrastructure projects. There are no backlogs for new investors filing EB-5 applications in the reserved categories. Therefore, new clients filing in one of these reserved categories will not be subject to retrogression. This is great news for investors born in mainland China and India.