Earlier this month, USCIS posted a Q&A on the EB-5 Immigrant Investor Program Modernization Rule which provides critical guidance regarding priority date retention that was lacking in the actual rule, implementation, and announcements. Specifically, USCIS stated:
Question: Who may benefit from the new EB-5 rule’s priority date retention provision?
Answer: Investors who file a new Form I-526, Immigrant Petition by Alien Investor, on or after Nov. 21, 2019, may use the priority date of a previously approved Form I-526 petition, subject to certain conditions.
Previously, it was somewhat unclear whether USCIS would allow the priority date retention for a second application filed before November 21, 2019 under the new rules. Now, USCIS has confirmed that an EB-5 investor must have submitted the second Form I-526 that satisfies the requirements under the new EB-5 rule, including the increased minimum investment amounts.
For those who are eligible, EB-5 investors are to provide USCIS, as part of their new Form I-526 submission, a statement requesting the earlier priority date along with a copy of the approval notice (Form I-797) for the previous Form I-526.