USCIS Publishes Final Rule Altering the EB-5 Immigrant Investor Program

On July 24, 2019, U.S. Citizenship and Immigration Services published a final rule making significant changes to the employment-based, fifth preference (EB-5) immigrant investor classification and associated regional centers.  The EB-5 program permits individuals to apply for permanent residence in the U.S. if they make the necessary investment in a new commercial enterprise in the U.S. and create 10 full-time jobs for qualified U.S. workers.   Regional Centers are economic enterprises designated by USCIS for participation in the Immigrant Investor Program.

The new EB-5 rule:

• Increases minimum investment amounts to $900,000 (from $500,000) in Targeted Employment Areas (TEAs), and from $1 million to $1.8 million in all standard areas. Additionally, the final rule provides that investment amounts are subject to additional increases in the future every five years, to be tied to inflation per the Consumer Price Index for All Urban Consumers (CPI-U).
• Changes how Urban TEAs are defined and designated. Under the final rule, TEA designations will now be determined by the Department of Homeland Security, and state and local TEA determinations will no longer be accepted.
• Provides priority date retention for subsequent EB-5 investor petitions where 1) the investor has a priority date set by a previously approved I-526 Immigrant Petition by Alien Entrepreneur and 2) the investor is reapplying due a failing investment project, termination of a regional center, or a backlog of visa applications.
• Clarifies procedures for the removal of conditions on permanent resident status, including situations where dependent family members must file their own I-829, Petition to Remove  Conditions on Permanent Resident Status.  By way of background, entrepreneur investors are initially granted conditional permanent resident status for two years, and must petition to have the conditions on status removed within a prescribed period.

The new rule will take effect November 21, 2019. Investors seeking to be “grandfathered” in under the old rules must file an I-526 petition  with USCIS before the new rule’s effective date.

Notably, the current EB-5 Regional Center program expires at the end of the government’s fiscal year on September 30, 2019.  Congress is currently considering  reauthorization of the program. If the program is reauthorized with substantive policy and legislative changes, it is possible that the final rule described above may not take effect.

Gibney will continue to monitor this matter and advise of developments. For additional information, please contact your designated Gibney representative or email info@gibney.com.