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What is an EB-5 “infrastructure” project?

By December 13, 2023Uncategorized
A group of people working on a project

Background on the EB-5 Immigrant Investor Visa (Green Card)

The EB-5 is an immigrant visa that provides permanent resident status (also known as a “green card”) to those who invest at least $1,050,000 into a business in the United States. If the business is located in a rural or high unemployment area (called a targeted employment area), or if the project is designated an “infrastructure” project, the investment amount can be reduced to $800,000. The EB-5 applicant must show that their investment led to the creation of at least ten jobs for US workers. For an overview of the EB-5 requirements and application procedure, please see here.

Given that an EB-5 visa applicant is able to reduce their investment amount by about 24 percent – from $1,050,000 to $800,000 – it is not surprising that many people want to know what an “infrastructure” project is.

What is considered an EB-5 infrastructure project?

The EB-5 infrastructure project category was created with the passage of the EB-5 Reform and Integrity Act in 2022.

An infrastructure project is defined in the Immigration and Nationality Act (INA) as one that is administered by a federal, state, or local government entity. The government entity serves as the job-creating entity and would contract with either an EB-5 regional center or new commercial enterprise to receive investment in order to maintain, improve, or construct a public works project. The Secretary of Homeland Security has sole discretion to determine whether a project is considered an infrastructure project; the state or local government cannot designate infrastructure projects.

Who can apply under the EB-5 infrastructure category?

The EB-5 infrastructure category is only available for those applications filed on or after March 15, 2022. It is also only available to those applicants who file under the regional center program, and is not available to those who apply under the direct investment program. For more information on the direct investment and regional center EB-5 options see here.

What are the benefits of applying for an EB-5 visa based on an “infrastructure” project?

An EB-5 applicant who invests in an infrastructure project receives similar benefits to those that apply based on an enterprise that is primarily doing business in an area that is rural or experiencing high unemployment (referred to as a targeted employment area or TEA).

First, their required investment amount is reduced from $1,050,000 to $800,000.

In addition, EB-5 applicants who invest in an infrastructure project may also benefit from the fact that the government reserves 2% of the EB-5 visas available each year for applicants whose investment is focused on infrastructure projects.

This can be significant, particularly for applicants who were born in India or China. According to the most recent visa bulletin, released in October 2023, an individual born in China who applied for an EB-5 green card based on investment in an infrastructure project would be able to immediately file an I-485 application to adjust status, which enables them to remain in the United States and apply for work authorization and a travel permit. In contrast, a national of China who applied through the standard EB-5 pathway (requiring an investment of $1,050,000) would need to wait an estimated seven years after filing the I-526 before they can file the I-485 (again, assuming they are within the United States). This is due to the backlog that impacts the standard EB-5 queue, but that does not impact the queue based on investment in an infrastructure project due to the additional visas that are reserved for that category.

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