12 July 2022: EB-5 wait-list-beating set-aside visas for new applicants

When would USCIS not allow the petitioner to use the priority date of a previously approved Form I-526 petition for a new Form I-526 filed on or after Nov. 21, 2019?

USCIS will not allow the petitioner to use the priority date of a previously approved Form I-526 petition for a subsequently filed petition if: The investor was already admitted to the United States under section 203(b)(5) of the Immigration and Nationality Act using the priority date of the earlier-approved petition; or USCIS revoked the previously approved petition for fraud or willful misrepresentation by the petitioner, or because the approval was based on a material error.

2022-09-15T12:53:48+00:00September 15th, 2022|

How can investors request an earlier priority date?

As part of their new Form I-526 submission, investors may provide USCIS with a statement requesting the earlier priority date along with a copy of the approval notice (Form I-797) for the previous Form I-526. Investors can request a duplicate copy of the earlier approval notice using Form I-824, Application for Action on an Approved Application or Petition.

2022-09-15T12:52:19+00:00September 15th, 2022|

What are the new minimum investment amounts that apply to EB-5 investors who file a Form I-526, Immigrant Petition by Alien Investor, on or after Nov. 21, 2019?

For investments outside of a Targeted Employment Area (TEA), the minimum investment amount increased from $1 million to $1.8 million. For investments in a TEA, the minimum investment amount increased from $500,000 to $900,000.  These amounts represent an adjustment based on inflation, as authorized by the law. Beginning on Oct.1, 2024, and every five years thereafter, these amounts will automatically adjust for petitions filed on or after each adjustment’s effective date, and DHS may update this figure by publication of a technical [...]

2022-09-15T12:51:23+00:00September 15th, 2022|

How does the EB-5 final rule affect the minimum investment amount for investors who filed their Form I-526 petition before Nov. 21, 2019, invested only a partial amount of capital, and are actively in the process of investing the remaining amount of capital?

These investors must meet the requirements in effect when they filed the petition—this includes the requirement to show they can meet the prior minimum investment amount of either $500,000 or $1 million by having either invested or been actively in the process of investing the required amount at the time of filing. Petitioners must show actual commitment of the required amount of capital at the time of filing but do not need to have fully contributed their capital investment to the new commercial enterprise before the effective date of the new rule—instead, [...]

2022-09-15T12:42:56+00:00September 15th, 2022|

If the principal investor’s derivatives (such as a child or spouse) were not included with the Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, and intend to file their own Form I-829, can they file together on a single Form I-829?

They can only file together if the investor is deceased. Otherwise, each derivative must file a separate Form I-829 petition. If the derivative is filing a separate petition from the investor, the derivative should attach a copy of the investor’s Form I-797, Notice of Action, relating to the investor’s Form I-829.

2022-09-15T12:41:54+00:00September 15th, 2022|

Does the new rule prohibit USCIS from adding a derivative to a pending Form I-829?

No, derivatives may still request to be added to a pending I-829 if they pay the biometric fee and are otherwise eligible to be classified as the principal’s derivatives. The new rule standardizes the process for those derivatives who file an individual Form I-829 petition and cannot be included on the principal investor’s Form I-829, generally because the principal fails or refuses to file a Form I-829.

2022-09-15T12:40:53+00:00September 15th, 2022|

Who May File for Change of Status to E-2 Classification

If the treaty investor is currently in the United States in a lawful nonimmigrant status, they may file Form I-129 to request a change of status to E-2 classification. If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 to request a change of status to E-2 classification on the employee’s behalf.

2022-09-15T12:37:56+00:00September 15th, 2022|
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