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Why EB-5 is Better


In its 33-year history, EB-5 has seen good times and bad times. The bad times have included a shutdown of the regional center program, a series of short-term extensions of the regional center program followed by a lengthy lapse, and high-profile fraudulent projects. So when we are experiencing good times, we should acknowledge and celebrate.

These are the good times. If there is anything for certain in this field, it is that the good times will not last forever. So while it lasts, I thought I would reflect on why EB-5 2024 is the good old days.

Here’s why:

Long-term Extension

Of course, there was a complete lapse of the regional center EB-5 program in 2021. But even before 2021, we went through several years of very short-term extensions, which provided precious little confidence in the investor community for the long-term future of the program.

The EB-5 Reform and Integrity Act (RIA) provides a long-term (5 year) extension of the regional center program. It also includes a grandfather provision to make certain that investors who file before the expiration of the extension in September 2026 will be able to complete their green card process even if the program is not extended.

Concurrent Adjustment

Perhaps more than anything else, the RIA provision allowing for concurrent filing of I-526 and I‑526E petitions with I-485 adjustment of status applications created a whole new market of EB‑5 investors. The ability to obtain an employment authorization document and a travel document relatively quickly after the concurrent filing has been a game changer, especially for Indian nationals with a quota waiting period in the EB-2 or EB-3 category that would likely last decades before they would be able to file for adjustment of status.

However, concurrent adjustment comes with at least one concern. Investors who come to the US with tourist or business visitor visas with the plan of applying for EB-5 and concurrent adjustment might be in for an unhappy surprise. If USCIS believes that they had a “preconceived intent” to immigrate when they came as visitors, the adjustment of status could be denied and, even worse, there could be a finding of fraud.

Reserved Visa Quota Current

Closely tied to concurrent adjustment is the fact that the quota for all countries in the reserved visa category established by the RIA (rural, high unemployment TEA, infrastructure) is current. The fact that the quota is current is not a function of lack of demand. It is a function of delays in EB-5 immigrant visa issuances at US consulates, which, in turn, is a function of delays in USCIS transmitting I-526E approvals to NVC and delays in NVC processing. These delays come with the silver lining that, as long as immigrant visas are not issued, the quota should remain current; and concurrent adjustment, which requires quota availability, will continue as an option.

Priority Processing

The RIA created “priority processing” for investors in rural projects. At the time of passage of the RIA, no one knew what this would mean in practicality. What we have discovered is that USCIS is processing rural petitions very rapidly – – often within less than 6 months. This means that, with concurrent adjustment, the entire green card processing can be completed in roughly 1 year. Although high unemployment TEA applications are not processed as quickly, they are still processed much quicker than similar cases filed pre-RIA – – in some cases 4 or 5 years ago – – which continue to languish.


As with concurrent adjustment, this benefit previously existed for EB-1, 2, and 3, but not EB-5. The RIA added it to EB-5. This provision allows an investor to file for adjustment of status even if they overstayed or violated their status for up to 180 days. This has expanded the universe of investors eligible to file for concurrent adjustment.

EB-5 Investor Protections

Perhaps the main goal of the RIA was to provide enhanced investor protections so as to significantly reduce the possibility of investors being the subject of EB-5 fraud. The RIA provisions – – fund administrator, certified audits, transparency regarding promoters and other provisions – – give investors far greater confidence that their investment funds will be used for their intended purpose and that they will accomplish their goal of obtaining a permanent green card and hopefully a return of their investment funds.

Good Faith Investors

Unfortunately, there were a number of failed or fraudulent projects that pre-dated the RIA. The RIA for the first time provided protections for “good faith investors” who are prejudiced by the termination of a regional center or the “debarment” of the NCE or JCE. USCIS has confirmed its interpretation that this statutory provision applies to pre-RIA investors. Unfortunately, as of the date of publication of this blog, USCIS has not yet established procedures or standards for debarment of NCEs or JCEs, which has left some good faith investors unable to avail themselves of the important remedy provided by the RIA. That needs to be addressed promptly, and I expect that it will.

Project Availability

The long-term extension of the regional center program, coupled with high interest rates from traditional sources, has made EB-5 a very attractive financing option for many developers. The choice of quality EB-5 projects has perhaps never been as numerous as it is today.

Sustainment Period

I hesitate to include this on the list because, as I have indicated in my previous blog, I fear that the benefits of the USCIS interpretation of the sustainment period as being 2 years will be illusory and a potential trap for investors. However, it is certainly true that it has attracted the interest of investors, including some who may have remained on the sidelines because of concerns regarding the timely return of their investment capital.

So, yes, these are the good times for EB-5. Enjoy it while it lasts; alas, the laws of gravity do apply to EB-5.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2024 Klasko Immigration Law Partners, LLP. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Klasko Immigration Law Partners, LLP. For permission, contact

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