The termination of a regional center can create significant uncertainty for EB-5 investors. However, the USCIS recently clarified its stance on protecting pre-RIA investors (those who filed before the EB-5 Reform and Integrity Act (RIA) of 2022) whose regional centers face termination due to administrative noncompliance. Here’s what you need to know.
USCIS’s Flexible Interpretation of the RIA
The RIA introduced strict requirements for regional centers, such as paying annual Integrity Fund fees. Noncompliance could lead to termination, potentially jeopardizing investors’ eligibility. Recognizing the impact on pre-RIA investors, USCIS has adopted a good-faith interpretation of the law.
Key points include:
- Grandfathering Under Section 105(c): Pre-RIA petitions continue to be adjudicated under pre-RIA rules, even if their regional center is terminated.
- Extended Deadlines: USCIS may extend response deadlines for investors to address termination notices until their petitions are adjudicated.
- Indirect Job Calculations: Pre-RIA investors can still rely on indirect job creation methodologies, as permitted before the RIA.
How USCIS Protects Pre-RIA Investors
- Case-by-Case Flexibility
USCIS officers have discretion to evaluate eligibility on a case-specific basis. If termination stems from administrative issues (e.g., unpaid fees) rather than fraud or failed job creation, investors may retain eligibility. - Opportunity to Respond
Investors may receive a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) during adjudication, allowing them to prove ongoing compliance. - Senate Intent Alignment
As noted by Sen. Chuck Grassley, the RIA’s grandfathering clause ensures pre-RIA petitions are processed under the law in place when they were filed.
Post-RIA Investors Face Stricter Rules
Unlike pre-RIA investors, post-RIA filers must comply with new requirements, such as maintaining ties to USCIS-approved projects. The grandfathering provision does not apply to them.
Key Takeaway for Pre-RIA Investors
If your regional center is terminated for administrative reasons, you may still qualify for EB-5 benefits under USCIS’s flexible interpretation. Consult an immigration attorney to:
- Confirm eligibility under pre-RIA rules.
- Prepare responses to RFEs or NOIDs.
- Explore alternative compliance strategies.
By prioritizing good-faith investors, USCIS aims to balance program integrity with fairness for those who invested under prior regulations.
Need help navigating EB-5 eligibility? Consult us to safeguard your immigration journey.
