EB-5 Investment Immigration: What Are the Differences Between the New EB-5 and the Old EB-5 Investment Immigration Programs?
EB-5 Investment Immigration: What Are the Differences Between the New EB-5 and the Old EB-5 Investment Immigration Programs?
Attorneys:Attorney Jeff Zhengquan Xie,Attorney Jiarui Yin,Attorney Qian Zhao,Attorney Haochun Ling, Xiang Xiao
In 2022, the U.S. Congress enacted new EB-5 investment immigration legislation, reigniting enthusiasm for the U.S. EB-5 program after a period of lull.
Therefore, 2022 can be regarded as a watershed year for the U.S. EB-5 investment immigration program. The EB-5 program prior to 2022 is referred to as the old EB-5 program, while the program implemented after 2022 is known as the new EB-5 program.
So, what are the key differences between the new and old EB-5 programs?
1. Different Minimum Investment Amounts
The minimum investment amount for the old EB-5 program was either $500,000 or $1,000,000. For the new EB-5 program, the minimum investment amount is set at either $800,000 or $1,050,000.
2. Different Types of Investment Projects
The old EB-5 program only categorized projects into Regional Center projects and non-Regional Center projects. Under the new EB-5 program, Regional Center-sponsored projects are further subdivided into three categories: Targeted Employment Area (TEA) projects (high-unemployment area projects), rural projects, and infrastructure projects.
3. Different Project Supervision Requirements
The old EB-5 program did not mandate USCIS approval for investment projects. Regional centers or project operators could promote projects and file applications once they had prepared the relevant project documentation. In contrast, under the new EB-5 program, project operators must first submit the project application (Form I-956F) to U.S. Citizenship and Immigration Services (USCIS) before filing Form I-526E on behalf of investors. While this requirement does not guarantee a reduction in the inherent risk of project failure, it helps mitigate legal risks related to project compliance. Once Form I-956F for a project is approved by USCIS, it signifies that the project’s compliance has been verified, and USCIS adjudicators will then focus their review on the investor’s source of funds.
4. Different Requirements for Project Promoters
Under the new EB-5 program, project promotion is not open to all parties. Promoters of new EB-5 projects must first submit Form I-956K to USCIS before soliciting investments from EB-5 investors. Additionally, promoters are required to sign promotion agreements with project operators or regional centers and disclose all promotion fees. This represents a form of government oversight over EB-5 project marketing activities—a requirement that did not exist under the old EB-5 program prior to 2022.
5. Different Immigration Visa Quotas
The old EB-5 program allocated a total of 10,000 immigration visas globally each year. For the new EB-5 program, 10%, 20%, and 2% of the original 10,000 annual global visas are reserved exclusively for investments in TEA projects, rural projects, and infrastructure projects respectively. Specifically, this translates to 1,000 visas for TEA projects, 2,000 visas for rural projects, and 200 visas for infrastructure projects.
6. Different Application Forms
The old EB-5 program used Form I-526 for investor petitions. The new EB-5 program requires the submission of Form I-526E, which contains more complex content and requirements compared to Form I-526.
7. Different Application Fees
Before the fee increase in April 2024, the filing fee for both the old and new EB-5 programs was $3,675. Subsequently, the fee for both programs was raised to $11,160. In addition, applicants under the new EB-5 program are required to pay an extra $1,000 fee mandated by the new legislation.
8. Different Benefits During Application
Applicants under the old EB-5 program could only file Form I-526 and then wait for approval and visa bulletin retrogression to resolve. Under the new EB-5 program, applicants can file Form I-526E and Form I-485 (Adjustment of Status) concurrently. They can also apply for an Employment Authorization Document (EAD) and Advance Parole at the same time, resolving immigration status issues in one step and eliminating concerns about children aging out of eligibility.
9. Different Timelines for Obtaining Conditional Permanent Residency
For applicants of our firm who filed under the new EB-5 program, the time to receive conditional permanent residency is approximately 9 months. In contrast, some clients who filed under the old EB-5 program at the end of 2015 are still waiting for their immigrant visas or conditional green cards. The primary reason for this disparity is visa quota availability. The new EB-5 program currently has sufficient visa quotas with no retrogression, while the old EB-5 program is only processing applications with priority dates up to December 15, 2015. This means applicants who filed after that date face an extremely lengthy waiting period.
In addition, it is now no longer possible to file applications under the old EB-5 program, whereas filings for the new EB-5 program remain open. Eligible EB-5 applicants can still take advantage of concurrent filing—submitting Form I-526E and Form I-485 together—to finalize their immigration status in one go. This concurrent filing window is particularly beneficial for EB-5 applicants already present in the U.S., such as international students, H-1B workers, TN professionals, L-1 visa holders, and even B-1/B-2 tourists. This is a once-in-a-lifetime opportunity—don’t let it slip away!
The above overview is prepared by XIE LAW OFFICES,LLC. to provide legal information to the Chinese community. It is primarily for academic discussion purposes and does not constitute legal advice on specific cases. If you already have legal representation, please consult your own attorney, who is familiar with the details of your case. Clients of Xie & Associates Law Firm, as well as readers who have not yet retained legal counsel, may contact Attorney Xie for specific legal questions. If you wish to reprint this document, please do so in full without any deletions, and clearly indicate the source.
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