The EB-5 Modernization Regulations were published today with an effective date of November 21, 2019. The 120-day runway to implementation extends beyond the next regional center program sunset date on September 30, 2019. This means there’s opportunity for legislative reauthorization to pass, mooting these rules.
American Immigration Lawyers Association summarizes the final rule, which:
- Increases the required minimum investment amounts;
- Revises the standards for certain targeted employment area (TEA) designations;
- Grants DHS authority to designate high unemployment TEAs;
- Clarifies USCIS procedures for the removal of conditions on permanent residence; and
- Provides priority date retention to certain EB-5 investors.
Minimum investment amounts: As of the effective date of the final rule, the minimum for standard EB-5 investments will increase from $1 million to $1.8 million. The minimum investment for a TEA will increase from $500,000 to $900,000. The final rule also provides that the minimum investment amounts will increase automatically for inflation every five years.
TEA designations: As of the effective date of the final rule, DHS will eliminate a state’s ability to designate certain geographic and political subdivisions as high-unemployment areas; instead, DHS will directly review and determine the designation of high-unemployment TEAs based on revised requirements in the regulation.
USCIS procedures for the removal of conditions on permanent residence: The final rule revises the regulations to clarify that derivative family members must file their own petitions to remove conditions on their permanent residence when they are not included in a petition to remove conditions filed by the principal investor. The rule also expands the scope of possible interview locations for Form I-829. Under the current rules, interviews for Form I-829 petitions are generally scheduled at the location of the new commercial enterprise. Under the final rule, interviews may be scheduled at the USCIS office having jurisdiction over either the immigrant investor’s commercial enterprise, the immigrant investor’s residence, or the location where the Form I-829 petition is being adjudicated.
Priority date retention for certain EB-5 investors: DHS will allow an EB–5 investor to use the priority date of previously approved EB-5 immigrant petition for use in connection with a subsequent EB-5 petition, unless DHS revokes the petition’s approval for fraud or willful misrepresentation by the petitioner, or revokes the petition for a material error.
These are heavy-weight changes, but I am watching for legislative progress. New laws may trump these regulations.