During the recent eight-month sunset of the Regional Center program (June 30, 2021, to March 15, 2022) which prohibited any new RC-based I-526 Petitions, some business promoters heavily marketed “Pooled Direct” investments as a currently available alternative EB-5 opportunity that could be filed with USCIS for $500,000. They would subscribe many EB-5 investors to a single New Commercial Enterprise and aggregate their capital to fund a new business venture, much like RC-based arrangements. Here, however, each Pooled Investor is required to create 10 direct full-time, permanent W-2 employees. Filing I-526 Petitions using direct jobs was not prohibited during the lapse.
Congress included pretty clear language in the RIA prohibiting the future use of “Pooled Direct” investment structures. Then, USCIS made the prohibition explicit on April 29, 2022, by posting an EB-5 Questions and Answers that states:
7. How is USCIS treating pooled standalone cases?
Pooled standalone cases are not allowed under the EB-5 Reform and Integrity Act of 2022; therefore, USCIS will reject any petition based on a pooled, non-regional center investment filed on or after March 15, 2022. USCIS will adjudicate pooled standalone cases filed before March 15, 2022 based on eligibility requirements at the time such petitions were filed.
In simplest terms, cases previously filed relying on this structure are grandfathered, but no new such cases may be submitted after the enactment date.