Today the Department of Homeland Security (DHS) released an advance copy of their Notice of Proposed Rulemaking entitled “EB-5 Immigrant Investor Program Modernization.” The proposed regulation looks to make several significant changes to the EB-5 program, most notably a significant increase in the minimum investment amounts. The principal proposed changes would impact both regional center and direct investments and are summarized below:
- Increase in Minimum Investment Amounts - DHS is proposing to increase the minimum investment amount for all new petitioners. The investment amount for investments located in Targeted Employment Areas (TEAs) would rise from $500,000 to $1.35 million and in non-TEAs from $1 million to $1.8 million.
- Priority Date Retention - DHS proposes to authorize certain individuals to retain their priority date from an earlier filed and approved I-526 petition for use in a subsequent I-526 petition, recognizing that petitioners sometimes must file new I-526 petitions due to circumstances beyond their control or for other reasons. The proposed rule notes that priority date retention aims to avoid the delays in immigrant visa processing that result from loss of priority date, which may become increasingly important due to the further oversubscription of the preference category that is anticipated.
- TEA Designations - DHS proposes to reform the TEA designation process by (1) allowing any city or town with high unemployment (average unemployment rate of at least 150% of the national average) and a population of 20,000 or more to qualify as a TEA; (2) eliminating the ability of a state to designate certain geographic and political subdivisions as high-unemployment areas and instead empowering DHS to make designations directly based on standards laid out in the proposed rule.
- Removal of Conditions - DHS proposes to revise the current regulations to require derivative family members to file their own I-829 petitions when they are not included in the principal investor’s I-829 petition. The proposed rule will also improve the I-829 adjudication process by providing flexibility in interview locations and updating the regulations “to conform to current processing for issuing permanent resident cards.”
- Miscellaneous Changes - The proposed rule will also update various miscellaneous provisions of the initial regulation that have not been updated since its initial enactment in 1991 and clarify definitions of key terms.
DHS is expected to publish the Notice of proposed Rulemaking in the Federal Register for public comment on January 13, 2017 and has given stakeholders three months, until April 11, 2017, to comment on the proposals. Note, the present EB-5 Regional Center Program will sunset on April 28, 2017. Therefore, D&S urges clients who wish to make an investment under the current investment amounts to file their I-526 petitions as soon as possible and, in all instances, prior to April 11, 2017.
D&S will continue to monitor this developing situation and provide updates as they become available.