USCIS Publishes Comprehensive New EB5 Rule

On July 24, 2019, the United States Citizenship and immigration Services (USCIS) published its new final rule on the EB5 immigrant investor program, titled “EB-5 Immigrant Investor Program Modernization” [84 FR 35750 (Jul. 24, 2019) PDF version]. The rules, which take effect on November 21, 2019, represent arguably the most significant changes to the EB5 program since its inception in 1993. In this post, we will briefly examine the key points of the new rule with reference to the USCIS's press release on the matter [PDF version]. We will publish a comprehensive article on the new rule in the near future, before it takes full effect.

The four most significant changes in the new final rule are as follows:

1. The standard minimum investment amount will be raised from $1,000,000 to $1,800,000. The standard minimum investment amount for TEAs will be raised from $500,000 to $900,000. The minimum investment amounts will automatically adjust for inflation every five years. The EB5 minimum investment amounts had not been changed since the EB5 program took effect.
2. Rather than allow states to designate certain geographic and political subdivisions as high-unemployment areas through combining series of census tracts to combine a prosperous area with actual high-unemployment areas, the DHS will make such designations based on revised requirements in the final rule. This will potentially have a significant effect on certain EB5 projects in large cities, including New York City.
3. The new rule will require certain derivative EB5 family members to independently file for the removal of conditions from their lawful permanent resident status. This independent filing requirement will not apply to derivative family members who were included in a principal EB5 investor's petition to remove conditions.
4. The new final rule will allow certain EB5 immigrant investors to retain their original priority date when they need to file a new EB5 petition.

The new EB5 rule will dramatically alter the EB5 landscape, from raising the minimum investment thresholds to changing the TEA-designation process. EB5 investors and potential EB5 investors should consult with an experienced immigration attorney for case-specific guidance on how they may be affected by the new rules. We will update the website with a detailed look at the new rules in the near future. For the time being, please see our growing selection of articles on Investment Immigration [see category] to learn about a variety of issues involving the EB5 program.