Final Rule Makes Significant Changes to EB-5 Immigrant Investor Program

On July 24, the U.S. Citizenship and Immigration Services published a final rule that marks the first significant revision of the program’s regulations since 1993. 

Perhaps the most notable aspect of this rule is that now, under the new 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 cases, preserve 10 permanent full-time jobs for qualified U.S. workers. 

The most notable changes to EB-5 in the final ruling are as follows:

  • Allowing EB-5 petitioners to keep their priority date: When immigrant investors need to file a new EB-5 petition, they will most likely retain the priority date of the previously approved petition.
  • TEA designation reforms: Gerrymandering of high-unemployment areas used to be a fairly common practice. However, in the final ruling, DHS will eliminate a state’s ability to designate certain geographic and political subdivisions as high-unemployment areas.
  • As of the effective date of the final rule, the standard minimum investment level will increase from $1 million to $1.8 million to account for inflation. The rule will also keep the 50% minimum investment differential between a TEA and a non-TEA. This will increase the minimum investment amount in a TEA from $500,000 to $900,000. The final rule also states that the minimum investment amounts will automatically adjust for inflation every five years.
  • Clarifying USCIS procedures for removing conditions on permanent residence: The final rule makes clear that certain derivative family members who are lawful permanent residents must independently file to remove conditions on their permanent residence. This does not apply to those family members who were included in a principal investor’s petition to remove conditions. The rule also provides flexibility in interview locations and adopts the current USCIS process for issuing Green Cards.

Of the new rule, USCIS Acting Director Ken Cuccinelli said, “Nearly 30 years ago, Congress created the EB-5 program to benefit U.S. workers, boost the economy, and aid distressed communities by providing an incentive for foreign capital investment in the United States.” He went on to say, “Since its inception, the EB-5 program has drifted away from Congress’s intent. Our reforms increase the investment level to account for inflation over the past three decades and substantially restrict the possibility of gerrymandering to ensure that the reduced investment amount is reserved for rural and high-unemployment areas most in need. This final rule strengthens the EB-5 program by returning it to its Congressional intent.”

The rule will become effective on November 21, 2019.

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John Sesini is an experienced immigration attorney with offices in Green Bay and Milwaukee Wisconsin. If you have any questions regarding immigration law matters, please contact the Sesini Law Group, S.C. and schedule your initial consultation with our firm today.

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