EB5 Investors Magazine "Top 25 issue" Volume 9 Issue 1 - Page 13

" The EB-5 Reform and Integrity Act of 2022 made a momentous change to the requirement to ‘ sustain the investment .’ "
10,000 or so visa numbers allocated to the EB-5 program each year . The State Department invoked the law ’ s 7 % per country limit and started holding back Chinese investors from obtaining visas to keep the flow under the annual limit . As the waiting list grew in years , and as EB-5 capital became used in more arms-length developments by serious developers , the requirement to “ sustain the investment ” to the end of the alien ’ s residence became increasingly onerous .
At a snail ’ s pace , USCIS accommodated the concern in two ways . First , it recognized that the “ alien ’ s residence ” ended with the two years that began upon admission as an EB-5 immigrant , so that they did not need to avoid repayment through the increasingly lengthy adjudication of the I-829 petition . Second , USCIS acknowledged that the NCE , being repaid the capital through some capital event such as sale or refinancing , could cause the investor to “ sustain the investment ” by “ redeploying ” it into another project until that two-year period of conditional residence was concluded .
Nevertheless , as the possible wait for a visa number for China-born investors appeared to stretch to 15 years and beyond , the prospect of enduring a series of successive business risks was recognized by many as unfair , despite the further job creation and the opportunity for continued profit by NCEs , middlemen , and developers .
HOW THE EB-5 REFORM AND INTEGRITY ACT CHANGED THE SUSTAINMENT REQUIREMENT
The EB-5 Reform and Integrity Act of 2022 (“ RIA ”) remedied this problem prospectively . Section 216A contained two provisions that had embodied the sustainment requirement , both as to when an investor could have conditional residence revoked even before completed , and as to what the investor must show in the I-829 petition at the end of that period . The key statute , INA § 216A ( d )( 1 ) stated , in pertinent part :
Each petition under subsection ( c )( 1 )( A ) shall contain facts and information demonstrating that the alien-
( A )( i ) invested , or is actively in the process of investing , the requisite capital ; and
( ii ) sustained the actions described in clause ( i ) throughout the period of the alien ’ s residence in the United States ; and …
RIA section 104 ( a ) stated :
( a ) In General .— Section 216A of the Immigration and Nationality Act ( 8 U . S . C . 1186b ) is amended —
* * * * * ( 6 ) in subsection ( d )— ( A ) in paragraph ( 1 )— ( i ) by amending subparagraph ( A ) to read as follows : “( A ) invested the requisite capital ;”; * * * * * The effect of this change 1 was to delete the requirement to sustain the investment , as follows :
Each petition under subsection ( c )( 1 )( A ) shall contain facts and information demonstrating that the alien-
( A )( i ) invested , or is actively in the process of investing , the requisite capital ; and
( ii ) sustained the actions described in clause ( i ) throughout the period of the alien ’ s residence in the United States ; and …
Only the most careful reader of the bill that became the RIA , with the INA at hand for comparison , could realize the nature of this change . Yes , the investor must have completed the investment before being admitted as a
EB5INVESTORS . COM 13