By Joey Barnett
The EB-5 Reform and Integrity Act of 2022 (RIA) accomplished something that had eluded policymakers for years: it restored confidence in the EB-5 program. Congress strengthened Regional Center oversight, imposed meaningful integrity measures to document the flow of capital among EB-5 entities, and created powerful incentives to focus investment on rural and high-unemployment communities. Immigrant investors responded exactly as Congress hoped they would. Capital flowed into targeted projects, rural developments became increasingly attractive, and the EB-5 program regained momentum after the temporary lapse in Regional Center authorization in 2021.
RIA’s success has created a new challenge – can the immigration system support the program keep pace with growing demand?
Many of the EB-5 program’s core procedures were developed for a different era of EB-5 adjudications and visa demand, and those statutory procedures impose administrative burdens on investors, regional centers, and the United States Citizenship and Immigration Services (USCIS) alike. Congress need not reinvent the EB-5 program to address these issues. Three targeted legislative changes would advance the same principles that motivated the RIA: efficiency, predictability, integrity, and economic impact.
ALIGN RESERVED VISA NUMBERS WITH CONGRESS
Perhaps the greatest success of the RIA was Congress’s decision to reserve EB-5 visa numbers for rural, high-unemployment, and infrastructure projects, combined with the ability of immigrant investors to file an adjustment of status concurrently with Form I-526E, rather than after Form I-526E was approved. The policy objective was clear: to encourage investment in communities and projects that would benefit most from additional capital and to give investors the ability to benefit from their EB-5 investment even before Form I-526E was approved.
The difficulty is that the current allocation of 32% of annual EB-5 visa numbers may ultimately prove insufficient to support the demand those incentives have generated. If reserved categories become backlogged, Congress risks creating a contradiction within its own statutory framework. Investors would be encouraged to pursue certain projects while simultaneously facing diminished access to the immigration benefits associated with those projects. Doubling the reserved allocation to 64% would not represent a departure from congressional intent; it would reinforce it. Visa allocation should reflect that policy judgment.
The consequences are not merely theoretical. Across the country, rural hospitals, manufacturing facilities, energy projects, and community development initiatives increasingly rely on EB-5 financing. When visa predictability declines, investor demand often follows; U.S. based EB-5 project sponsors and job creators must either secure more expensive capital or scale back development plans altogether. Congress should not allow the success of its own incentive structure to become the source of future bottlenecks.
END CONDITIONAL RESIDENCE ONCE ITS PURPOSE HAS BEEN FULFILLED
Conditional residence under the EB-5 Program was created for a straightforward reason: to verify that investors satisfied the requirements of the EB-5 program before receiving unconditional permanent residence.
What is less clear is why conditional residence should continue long after the underlying eligibility conditions have already been answered. When Congress passed the RIA in 2022, it disconnected the “sustainment requirement” from an immigrant investor’s date of obtaining conditional green card status. Under current applicable USCIS guidance, and as indicated in the NPRM:
“Although the statute does not explicitly specify when the 2-year period begins, USCIS interprets the start date to be the date that the full amount of qualifying investment is made to the new commercial enterprise and placed at risk under applicable requirements, including being made available to the job-creating entity, as appropriate.”
Accordingly, for many post-RIA investors stuck in visa backlogs, by the time conditional residency has been obtained, the capital has been invested and sustained for long enough, the project has been completed, and the required jobs have been created. Yet those investors only obtain conditional status for years while USCIS processes I-829s, even though the conditions have been met!
Congress did not create conditional residence as a long-term immigration category; rather, it was created as an investment and job-verification mechanism. Once USCIS has determined that the investment requirements have been satisfied and the requisite jobs have been created, the purpose of the condition has been fulfilled. Continuing to require a separate petition, the I-829, years later, often serves little practical purpose while imposing substantial administrative costs on all participants.
Again, the real-world consequences are significant. Investors face prolonged uncertainty despite full compliance with the statute. Families planning educational, professional, and business decisions must continue to navigate temporary documentation and extension notices. Regional centers spend years assisting investors with post-compliance administrative issues. USCIS adjudicators devote resources to petitions where the central eligibility questions were resolved long ago. This could all be changed with a legislative change.
Congress should consider a mechanism that allows investors who have demonstrably satisfied all statutory conditions, due to prolonged retrogression or adjudication delays, to receive unconditional permanent residence without undergoing a duplicative second-stage filing process. Such a reform would not weaken oversight. It would recognize that oversight has already accomplished its objective.
CREATE AN I-829F PROJECT APPROVAL PROCESS
Of the three reforms, this one may offer the greatest administrative benefit while requiring the least conceptual change. The RIA has already embraced project-level adjudications by creating Form I-956F. Congress recognized that project-specific facts should be reviewed once rather than repeatedly revisited in every investor’s petition. The same principle should apply to job creation at the I-829 stage.
Job creation is fundamentally a project-level determination. If a project generated 2,000 qualifying jobs, it generated 2,000 qualifying jobs for every investor associated with that project. There is little administrative value in requiring USCIS to repeatedly evaluate the same economic analyses, construction expenditures, payroll records, and project documentation across hundreds of separate petitions.
Congress should create an “I-829F” process through which regional centers or project sponsors could submit project-wide evidence demonstrating project completion and compliance with applicable job-creation requirements. Upon approval, USCIS would have a binding determination regarding project-level job creation, allowing subsequent adjudications to focus on investor-specific issues, such as sustainment.
The practical benefits are obvious. Consider a project involving 500 investors. Under the current system, USCIS may effectively review the same project evidence hundreds of times. Regional centers repeatedly assemble the same documentation. Investors wait for adjudications that depend on facts already established.
An approved I-829F would allow those project-level questions to be answered once. USCIS officers could focus their attention on investor-specific eligibility issues. Adjudications would become faster and more consistent. Regional centers could devote fewer resources to repetitive submissions and more resources to compliance and investor relations.
FINISHING WHAT THE RIA STARTED
Increasing reserved visa allocations would align visa availability with Congress’s economic development priorities. Eliminating unnecessary conditional residence procedures after compliance has been established would restore the original purpose of conditional residence. Creating an I-829F process would reduce duplication and allow USCIS to focus its resources on cases that require individualized review.
None of these proposals alter the basic bargain Congress established when it created EB-5. Investors would still be required to invest in capital, create jobs, and meet all statutory requirements. Regional centers would remain subject to the integrity measures enacted by the RIA. USCIS would continue serving as the gatekeeper for program compliance.
The difference is that investors, regional centers, and adjudicators would spend less time repeating the same administrative exercises after those requirements have already been met.
The RIA reflected Congress’s recognition that EB-5 had become too important to the American economy to operate under outdated procedures. As demand continues to grow, efficiency is no longer merely a matter of convenience. It is becoming a prerequisite for the program’s long-term success.
Joseph Barnett
Joey Barnett is a partner at WR Immigration and a member of its EB-5 and business immigration practices.
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