USCIS Publishes a Proposed Rule for EB-5 Immigrant Investor Program

On January 13, 2017, U.S. Citizenship and Immigration Services, DHS published a proposed rule “EB-5 Immigrant Investor Program Modernization” on Federal Register website.

According to this proposed rule, DHS proposes the following major revisions to the EB-5 program regulations.


DHS proposes to authorize certain EB-5 petitioners to retain the priority dateof an approved EB-5 immigrant petition for use in connection with any subsequent EB-5 immigrant petition. Petitioners with approved immigrant petitions might need to file new petitions due to circumstances beyond their control (for instance, DHS might have terminated a regional center associated with the original petition), or might choose to do so for other reasons (for instance, a petitioner may seek to materially change aspects of his or her qualifying investment). DHS is proposing to generally allow EB-5 petitioners to retain the priority dates of previously approved petitions so as to avoid further delays on immigrant visa processing associated with the loss of priority dates. DHS believes that priority date retention may become increasingly important due to the strong possibility that the EB-5 visa category will remain oversubscribed for the foreseeable future.


DHS is proposing to increase the minimum investment amounts for all new EB-5 petitioners. The increase would ensure that program requirements reflect the present-day dollar value of the investment amounts established by Congress in 1990. Specifically, DHS proposes to initially increase the standard minimum investment amount, which also applies to high employment areas, from $1 million to $1.8 million. This change would represent an adjustment for inflation from 1990 to 2015 as measured by the unadjusted Consumer Price Index for All Urban Consumers (CPI-U), an economic indicator that tracks the prices of goods and services in the United States. For those investors seeking to invest in a new commercial enterprise that will be principally doing business in a targeted employment area (TEA), DHS proposes to increase the minimum investment amount from $500,000 to $1.35 million, which is 75 percent of the proposed standard minimum investment amount. In addition, DHS is proposing to make regular CPI-U-based adjustments in the standard minimum investment amount, and conforming adjustments to the TEA minimum investment amount, every 5 years, beginning 5 years from the effective date of these regulations.


DHS proposes to reform the TEA designation process to ensure consistency in TEA adjudications and ensure that designations more closely adhere to Congressional intent. First, DHS proposes to allow any city or town with high unemployment and a population of 20,000 or more to qualify as a TEA. Currently, TEA designations are not available at the city or town level, unless a state designates the city or town as a TEA and provides evidence of such designation to a prospective EB-5 investor for submission with the Form I-526. See 8 CFR 204.6(i). Second, DHS proposes to eliminate the ability of a state to designate certain geographic and political subdivisions as high-unemployment areas; instead, DHS would make such designations directly, using standards described in more detail elsewhere in this proposed rule. DHS believes these changes would help address inconsistencies between and within states in designating high unemployment areas, and better ensure that the reduced investment threshold is reserved for areas experiencing significantly high levels of unemployment.


DHS proposes to revise 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. In addition, DHS is proposing to improve the adjudication process for removing conditions by providing flexibility in interview locations and to update the regulation to conform to the current process for issuing permanent resident cards.


Lastly, DHS proposes to update the regulations to reflect miscellaneous statutory changes made since the regulation was first published in 1991, as well as to clarify definitions of key terms for the program. By aligning DHS regulations with statutory changes and defining key terms, this proposed rule will provide greater certainty regarding the eligibility criteria for investors and their family members.

Written comments must be received on or before April 11, 2017. If you want to review this rule in details and/or submit a formal comment, you may click the link below:

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