USCIS stated in the declaration that “as of September 6, 2022, there are no visas remaining for applicants from any country of chargeability in EB1 (employment-based first-preference) or EB2” (employment-based second-preference).USCIS also notes that they expect retrogression in EB-2 India due to high demand.Under the Immigration and Nationality Act (INA) § 203(b), 8 U.S.C. 1153(b), Congress divides the overall EB annual limit between the five employment-based categories based on fixed percentages. EB1, EB2, and EB3 each receive 28.6% of the overall limit, and EB-4 and EB-5 each receive 7.1% of the overall limit.

2022, will remain required to "sustain their investment" in their NCE through the expiration date on their initial green card, but investors who filed I-526 after March 15, 2022 only have the requirement that their capital is "expected to remain invested for not less than two years." Some industry associations have advocated to USCIS that RIA does not actually change the old requirement, while an association of investors has argued the contrary. But in its Federal Register notice about the RC Integrity Fee, USCIS implicitly recognized the severe truncating of the sustainment period under the RIA, stating as to the calculation of investors for purposes of the amount of the integrity fee, "USCIS considered generally counting only the Forms I-526 that were filed within two years of the applicable period used for determining the EB-5 Integrity Fund fee given the expected two-year minimum timeframe for the investment, or sustainment period, under the 2022 Act. INA section 203(b)(5)(A)(i); 8 U.S.C. 1153(b)(5)(A)(i)."Perhaps more clarity will come from USCIS' March 20 EB-5 stakeholder engagement session, where this topic is on the agenda.

Substantial changes are forthcoming for the EB-5 Immigrant Investor Program as the omnibus spending bill awaits President Biden’s signature. Aside from proposing $1.5 trillion for annual expenses and aid, the omnibus bill includes new EB-5 legislation, entitled the “EB-5 Reform and Integrity Act of 2022,” that immediately increases the standard EB-5 minimum investment amount to $1,050,000, or $800,000 if in a targeted employment area (TEA), and reauthorizes the EB-5 Regional Center program through September 30, 2027.EB-5 Visa ReformsSeveral updates are planned for 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)). Under the new legislation, EB-5 visas shall continue to be made available to a qualified immigrant investorwho has invested, or is in the process of investing, capital in an amount not less than $1,050,000, or $800,000 for TEA and infrastructure projects; andwhose commercial enterprise must benefit the nation’s economy by creating full-time employment for at least 10 qualifying employees.The legislation also stipulates that of the EB-5 visas made available each fiscal year, 20% is reserved for qualified immigrants who invest in a rural area, 10% is reserved for qualified immigrants who invest in a high unemployment area, and 2% is reserved for qualified immigrants who invest in infrastructure projects.

8) Not yet numbered, available at: https://www.whitehouse.gov/presidential-actions/presidents-executive-order-hong-kong-normalization/.9) Impacted laws include section 103 of the Immigration Act of 1990 (8 U.S.C. 1152 note); sections 203(c), 212(l), and 221(c) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1153(c), 1182(l), and 1201(c), respectively); the Arms Export Control Act (22 U.S.C. 2751 et seq.); section 721(m) of the Defense Production Act of 1950, as amended (50 U.S.C. 4565(m)); the Export Control Reform Act of 2018 (50 U.S.C. 4801 et seq.); and section 1304 of title 19, United States Code.10) 15 C.F.R. Parts 730-774.11) 22 C.F.R. Parts 120 et seq.12) U.S. Secretary of State Press Statement, “U.S. Government Ending Controlled Exports to Hong Kong,” (June 29, 2020).13) 15 C.F.R. Part 740, Supplement No. 1. Hong Kong presently is listed in Country Groups A:6 and B. In contrast, China is in Country Groups D:1, D:3, D:4, and D:5 (restricted for reasons of national security, chemical and biological weapons proliferation, missile technology, and U.S. arms embargo policies).14) See Dechert’sApril 28 OnPoint on tightened export restrictions on China, Russia and Venezuela.

[2] A targeted employment area is “a rural area or an area which has experienced high unemployment (of at least 150 percent of the national average rate).” 8 U.S.C. 1153(b)(5)(B)(ii). [3] EB-5 Immigrant Investor Program Modernization, 82 F.R. 4738, (Jan. 13, 2017), available at, https://www.federalregister.gov/documents/2017/01/13/2017-00447/eb-5-immigrant-investor-program-modernization.

The majority assumed the case was justiciable, held that the president has power under 8 USC 1182(f) to suspend entry of aliens into the United States, the restrictions in the proclamation were lawfully adopted after a worldwide interagency review, contained extensive findings which would satisfy any duty to explain and any searching inquiry would be inconsistent with the power granted in 1182(f) and follows the time and class requirements and the class designation of all nationals from a country is a permissible one. It rejected Hawaii’s counterarguments holding there was no conflict between the proclamation and statutory provisions on information sharing, the text of 1182(f) is unambiguous and thus neither background or legislative history need be considered, the proclamation does not violate 8 USC 1153(a)(1)(A) as it is limited to visa applications at the individual level not exclusion decisions in 1182(f). It held individual plaintiffs alleged sufficient interest for standing to bring a First Amendment challenge to the proclamation, but, held the proclamation did violate the First Amendment as it is facially legitimate and supported by bona fide reasons which is all that is required in this context and survives rational basis review as national security concerns are related to the entry restrictions in the proclamation, several majority Muslim countries have been removed from the list of covered countries over time and even for covered countries certain of their nationals are exempt for the restrictions.

This article is co-authored byDaniel B. Lundy, Esq., ofKlasko Immigration Law Partners, LLP. This White Paper sets forth a legal framework for establishing the standards and guidelines for redeployment of investment funds by a “new commercial enterprise” (“NCE”) received from investors (“EB-5 Investors“) seeking to qualify for visas pursuant to the EB-5 Immigrant Investor Program under Section 203(b)(5) of the Immigration and Nationality Act (“INA”), (8 U.S.C. § 1153(b)(5)) (the “EB-5 Program“). This White Paper assumes that the initial investment was made by the NCE in a “job creating entity” (“JCE”), the investment funds have been utilized by the JCE in accordance with a business plan approved by United States Citizenship and Immigration Services (“USCIS”) and then repaid by the JCE to the NCE after the requisite 10 jobs per EB-5 Investor have been created.

The alternative is for EB-5 investment funds to accept only those investors who can legally enter into contracts under the governing law of the applicable state, but in that case the parent and the minor will retain the risk that the minor will age out before the parent is able to obtain the visa. This problem could be better solved if Congress amends the Child Status Protection Act [8 U.S.C. 1153(h)] to freeze the child’s age as of the date of filing, rather than merely allowing the child to deduct the time the petition was pending from their actual age. With the September 2016 sunset of the EB-5 regional center program, Congress has a perfect opportunity to amend the law to protect children from aging out.Conclusion While it is possible that USCIS may establish a bright line cut-off age for principal EB-5 immigrant visa applicants, it is likely that each case will be evaluated on a case by case basis providing an opportunity for EB-5 investment funds and their counsel to structure a framework that complies with state and federal law.

The Ninth Circuit (en banc) overruled this interpretation based on the Child Status Protection Act. But the key provision, 8 U.S. C. 1153(h), is not written in the plainest of terms. It says this:If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

The EB-5 visa category was originally created in 1990 for foreign nationals who invest in a new commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs. Congress set aside 10,000 immigrant visas annually for investors and their immediate family members under Section 203(b)(5) of the Immigration and Nationality Act (“INA”) (8 U.S.C. 1153(b)(5). The EB-5 program thus generates capital investment in the U.S. for businesses that will generate new jobs.