USCIS EB-5 Final Rule Revises EB-5 Regulations

USCIS final rule making several major revisions to the EB-5 regulations. The final rule is effective 11/21/19, and will apply to petitioners who file on or after the effective date. The rule, published in the Federal Register on 7/24/19, makes a number of significant changes to its EB-5 Immigrant Investor Program.

Major changes to EB-5 in the final rule include:

  • Raising minimum investment amounts: As of the effective date of the final rule, the standard minimum investment level will increase from $1 million to $1.8 million, the first increase since 1990, to account for inflation. The rule also keeps the 50% minimum investment differential between a TEA and a non-TEA, thereby increasing the minimum investment amount in a TEA from $500,000 to $900,000. The final rule also provides that the minimum investment amounts will automatically adjust for inflation every five years.
  • TEA designation reforms: The final rule outlines changes to the EB-5 program to address gerrymandering of high-unemployment areas (which means deliberately manipulating the boundaries of an electoral constituency). Gerrymandering of such areas was typically accomplished by combining a series of census tracts to link a prosperous project location to a distressed community to obtain the qualifying average unemployment rate. 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 would make such designations directly based on revised requirements in the regulation limiting the composition of census tract-based TEAs. These revisions will help ensure TEA designations are done fairly and consistently, and more closely adhere to congressional intent to direct investment to areas most in need.
  • Clarifying USCIS procedures for removing conditions on permanent residence: The rule revises regulations to make clear that certain derivative family members who are lawful permanent residents must independently file to remove conditions on their permanent residence. The requirement would not apply to those family members who were included in a principal investor's petition to remove conditions. The rule improves the adjudication process for removing conditions by providing flexibility in interview locations and to adopt the current USCIS process for issuing Green Cards.
  • Allowing EB-5 petitioners to keep their priority date: The final rule also offers greater flexibility to immigrant investors who have a previously approved EB-5 immigrant petition. When they need to file a new EB-5 petition, they generally now will be able to retain the priority date of the previously approved petition, subject to certain exceptions.

Litwin & Smith limits its practice to U.S. immigration law and related issues. We assist qualifying investors with EB-5 investor visas. While we do assist with EB-5 petitions and green card applications. We don't always recommend the EB5 program where H, E, L, O, or other visas may be available to individual investors. Simply because the EB5 path currently has been several years so long and other investment visas are faster. Our firm is nationally recognized as a premier immigration law firm. We routinely provide immigration assistance to people from all over the world. We have one compelling mission: to assist employers and immigrants in obtaining their immigration goals. We have dedicated our careers to developing and maintaining expertise in immigration law and know how to assist people around the world live and work in the USA. We have offices conveniently located in Santa Clara and South San Francisco, and telephone appointments can be scheduled as well.