The EB-5 Immigrant Investor Program has long been a gateway to U.S. permanent residency for foreign investors. However, the landscape of this program changed significantly with the introduction of the EB-5 Reform and Integrity Act of 2022 (RIA). While these reforms brought clarity and benefits for new investors, they left pre-RIA investors facing unique challenges.

This guide is for those navigating these hurdles, offering insights into how pre-RIA investors can streamline their journey under the updated EB-5 framework and uncover opportunities to move forward with confidence.

Understanding the EB-5 Reform and Integrity Act

Passed in 2022, the EB-5 Reform and Integrity Act aimed to enhance the program’s transparency, security, and efficiency. Designed to protect investors and promote U.S. economic growth, especially in underserved areas, the RIA introduced four significant updates:

• Concurrent Filing: Eligible new investors in the United States can file their I-526E petition and I-485 adjustment of status forms simultaneously, allowing them to live, work, and study in the U.S. while awaiting their Green Card.
• Streamlined Sustainment Requirements: Previously, investors were required to keep their capital “at risk” for the duration of their conditional residency, which could last several years. Now, the sustainment period is at least two years, starting from when funds are deployed to the job-creating entity.
• Priority Processing for Rural Projects: Projects in rural targeted employment areas (TEAs) now benefit from faster processing, with most petitions approved in a matter of months.
• Reserved Visas: A portion of EB-5 visas is now reserved for rural TEAs, high-unemployment TEAs, and infrastructure projects, helping new investors avoid backlogs in the “unreserved” EB-5 categories.

The Pre-RIA Investor’s Dilemma

For those who invested before the RIA’s implementation, the path remains riddled with obstacles. Unfortunately, the reforms do not apply retroactively to pre-RIA petitions. As a result, these investors encounter the following issues:

• Longer Wait Times: Pre-RIA petitions often linger in the USCIS queue for years, subject to slower adjudication processes. Chinese and Indian investors are especially affected by long backlogs in unreserved categories.
• No Concurrent Filing: Unlike post-RIA investors, pre-RIA applicants must wait for I-526E petition approval before filing for adjustment of status, delaying their ability to live and work in the U.S.
• No Access to Reserved Visas: Pre-RIA investors cannot benefit from the reserved visa categories introduced by the RIA, leaving them entrenched in broader backlogs.

Despite these challenges, pre-RIA investors have options. Let us explore strategies to help them navigate this complex landscape and uncover actionable opportunities.

Options for Pre-RIA Investors

Stay the Course With the Original Petition

The simplest approach is to remain patient and continue with the original petition. This allows pre-RIA investors to retain their priority date and avoid the hassle of starting over. As long as the project remains viable and creates the required jobs, the petition will eventually be processed.

While patience is essential, keeping the bigger picture in mind—the goal of a Green Card—can help investors stay motivated. Progress, even slow, is still progress.

File a Mandamus Lawsuit

When delays become excessive, filing a mandamus lawsuit can be a meaningful change. This legal action compels USCIS to decide on long-pending cases. While it does not guarantee approval, it often forces prioritization of your petition.

Consulting with an experienced immigration attorney before filing is critical. A well-prepared lawsuit can be a powerful tool, giving investors a sense of control over what can feel like an endless wait.

Reinvest in a New EB-5 Project

For investors whose original projects have hit roadblocks, reinvesting may be a possibility. Reinvestment into a qualifying new project, particularly in rural TEAs, could provide a fresh start and potential benefits of the RIA.

Reinvestment not only opens new doors but also aligns your goals with the streamlined benefits of the updated program. While it may feel like starting over, careful research and professional guidance can make this a worthwhile step.

Leveraging Expert Guidance

Navigating the EB-5 program’s complexities is no small feat, especially for pre-RIA investors. Partnering with an experienced immigration attorney and EB-5 team can make all the difference. These professionals can:

• Assess the viability of your original petition.
• Guide you through the mandamus lawsuit process.
• Evaluate reinvestment opportunities.
• Find alternative pathways tailored to your circumstances.

EB5AN Can Help You Identify Best Strategies

For pre-RIA investors, the EB-5 journey may feel like a marathon compared to the sprint newer participants enjoy. However, with the right strategy, persistence, and expert support, the finish line is still within reach.

Every step forward is progress. Whether it is staying the course, pursuing legal action, or reinvesting, there are options to ensure your efforts and investments pay off. The promise of U.S. permanent residency is a goal worth pursuing, and with the right mindset, the journey itself can be rewarding.

By understanding your options, seeking professional guidance, and remaining proactive, you can turn challenges into steppingstones on your path to U.S. permanent residency. And seeking an experienced EB-5 firm’s help can be crucial.

EB5AN has helped more than 2,300 families from 70+ countries become lawful permanent residents of the United States. Our team has more than a decade of experience and offers clients first-rate, low-risk EB-5 regional center projects with a 100% USCIS project approval rate to date.

Book a free consultation with our expert team today to explore your options for a successful EB-5 Green Card process.