By Anayat Durrani
For EB-5 backlogged countries like China, the new set aside categories determined by the Reform and Integrity Act of 2022 (RIA) are allowing investors to enter a new line without the long wait.
The RIA created a pathway for investors to bypass the backlog with a new set-aside category. Therefore, EB-5 investors can now qualify for a set-aside visa when investing in three investment categories: high-unemployment targeted employment areas (TEAs), rural TEAs, or infrastructure initiatives.
The RIA set aside represents 32% of the annual EB-5 visas for investors.
“The new visa set-aside created under the RIA provide incentive for investors with pending I-526 petitions and subject to long visa wait lists to obtain a refund of their principal and file a new I-526 petition,” says Dennis Tristani from Tristani Law, LLC. “This is especially true for investors who are living in the US or have family members in the US that can take advantage of a concurrent I-526/I-485 filing.”
But what happens if an EB-5 investor already invested?
Are EB-5 investors able to get a refund and reinvest in another category?
“Depending on the amount of time that has passed since the investor’s initial investment, it’s possible that the Regional Center has already received a return of their investment/loan to the developer and has redeployed the investor’s principal to comply with pre-RIA sustainment and redeployment rules,” says Tristani.
In this situation, Tristani says the investor can ask for a refund of their principal, and the Regional Center may be able to provide it. Still, it depends on the timing of repayment from the developer or when the investor’s funds were redeployed. Tristani says the investor can then use the funds for a new I-526 petition.
What happens if an EB-5 investor files a new petition in the new set aside and has two petitions at the same time?
“If the investor isn’t able to obtain a quick refund of their capital from their first EB-5 project, they can also use separate funds and invest in a new EB-5 project under the new visa set aside and have two I-526 petitions pending at the same time,” says Tristani. “It is completely acceptable to have multiple green card petitions pending simultaneously.”
He says the investor will need to choose one petition to eventually complete adjustment of status or consular processing to obtain their green card. He says if an investor is able financially to place a second EB-5 investment, “taking advantage of the current visa set-asides and ability to adjust status in the U.S. is an attractive option, especially for pre-RIA EB-5 Chinese investors who are subject to a very long visa wait list.”
Jennifer Sherer, senior vice president of FirstPathway Partners, says transparency is the real issue. She adds that the U.S. Citizenship and Immigration Services (USCIS) has yet to provide data on the number of principal applicants and dependent family members in each of the reserved set-aside for visa queues.
“They have not provided information on the country of chargeability of those applicants. Without this type of data from the USCIS, it is impossible to compare queues or wait times. Adding to that is that numerical limits are also subject to future changes,” she said.
“The fastest, however most expensive, route would be to file multiple petitions. I would liken this to having two horses in the same race — more opportunities to cross the finish line with the fastest time,” says Sherer.
The same situation occurs in another context, in which a petitioner with a pending backlogged EB-2 files an EB-5 and waits to see which category has visa availability first.
“The worst thing you can do is withdraw only to watch your original priority date authorized for visa issuance,” Sherer warns.
In the EB-5 market, China continues to hold its top spot with 6,125 EB-5 visas issued of 10,885 total in 2022, per data from the State Department.
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