the queue based on date of I-526 filing. Also under the
CSPA, the child’s “adjusted age” for this purpose is
reduced by the time it takes for USCIS to adjudicate the
I-526 petition. In effect, a child’s adjusted age happily is
frozen during the nail-biting time an I-526 petition awaits
adjudication and then resumes advancing until a visa
number becomes available. If the adjusted age exceeds
21 before that date, the child becomes ineligible to derive
permanent residence with the parent investor.
On Jan. 31, 2019, USCIS suddenly
announced that it will “prioritize”
a d j u d i c a ti o n of I - 526 p e ti ti o ns
made by investors who are
n o t s u b j e c t to v is a ava ila b ili t y
backlog. USCIS has been falling
farther and farther behind in those
adjudications, so it reasoned that it
should focus its limited resources
on deciding cases for the investors
who can actually make use of the
ap p roval. O bvio usl y, inves to r s
who get “prioritized” and can
immigrate more quic k ly will be
delighted. Even for some visa -
backlogged investors, this will have
the happy effect of reducing the chances of a child’s
“aging out” of eligibility while awaiting visa numbers
a n d w i l l b e we l c o m e . F o r o t h e r v i s a b a c k l o g g e d
investors, however, it will be a ver y unwelcome and
irritating increased wait to be told that they qualif y
based on their project plans and their source of funds.
This delayed adjudication for investors born in visa-
backlogged countries has the unintended effect
of e limina tin g th e p rote c tio n tha t th e 2019 U S C I S
regulations had provided for investors who obtained
I-526 approval before they could immigrate and their
project fizzled, failed, was fraught with fraud, or suffered
te r m i n a t i o n o f t h e s p o n s o r i n g
regional center, so that the investor
lost will or ability to proceed due to
hopelessness of an I-829 approval
down the road or even due to
i m m e d ia te I - 526 r evo c a ti o n by
USCIS. Under the new regulations,
such investors could make a
new investment and I -526 filing
and retain their place in the visa
n u m b e r qu e u e fro m th e ea r lie r
approved I - 526 filing. If USCIS
delays the I -526 adjudication
a n d m ea nw hil e th e p roje c t ’s
infeasibility is exposed, USCIS will
deny the I-526 petition and “priority
date retention” will be unavailable, so that the investor
would need to start over at the back of the visa queue
with a new investment and filing.
"Under the CSPA, the
child’s “adjusted age”
for this purpose is
reduced by the time
it takes for USCIS to
adjudicate the I-526
petition."
HIGHER MINIMUM INVESTMENT
AND TIGHTER TEAS
In the 2019 regulations, USCIS exercised the authority
it left unused for the first 28 years of the EB-5 program,
increasing the minimum normal investment to $1.8
million from $1 million and increasing the investment
in TEAs, which have accounted for more than 95% of
EB-5 investments so far) to $900,000 from $500,000.
The same regulation also significantly narrowed the
areas that can qualif y as TE As for which the lower
$900,000 investments are possible. Most of the areas
in major money centers that had raised the most EB-5
capital no longer will qualify for the lower investment
level. Naturally, far less foreign nationals will be able
and willing to risk that much more capital for potentially
longer time periods in more restricted areas.
USCIS finally announced this rule change in July
2019 and made it take effect Nov. 21, 2019. During
that four- month period, significant numbers of EB -5
investors “jumped off the fence” and flooded into EB-5
investments at the last chance of the $500,000 level
participation, surely depleting the future flow of willing
investors regardless of the level. Not surprisingly, the
number of new investors at the $900,000 or $1.8 million
levels have been extremely small in the early months of
the new year.
Another contributing factor for the current low
par ticipation is the continuing hope for litigation or
10
EB5 INVESTORS M AGAZINE