U.S. Citizenship and Immigration Services (USCIS) has published a final rule in the Federal Register making significant changes to the EB-5 Immigrant Investor Program. The final rule is scheduled to take effect on November 21, 2019. Under the EB-5 program, individuals are eligible to apply for conditional lawful permanent residence in the United States if they make the necessary investment in a commercial enterprise in the United States and create or, in certain circumstances, preserve 10 permanent full-time jobs for qualified U.S. workers. The biggest changes are to the minimum investment amount and what qualifies as a Targeted Employment Area (TEA). A TEA is a high unemployment area defined by the Bureau of Labor Statistics as areas having unemployment more than 150% higher than the national average and rural areas defined as areas outside a Metropolitan Statistical Area.

For those considering applications for the EB-5 Program, please note the following:

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. While the existing rules will continue to be in effect for Form I-526 petitions filed with USCIS before November 21, 2019, a currently approved Regional Center project that does not meet the new EB-5 eligibility criteria will no longer be eligible for EB-5 investment as of November 21, 2019.

To understand how these changes may impact your investment plans, please contact Dunlap Bennett & Ludwig at 703-777-7319 to schedule a consultation.

Posted in: Client Alerts, Immigration Law