USCIS Employment-Based Fifth Preference Visa (“EB-5” Immigrant Investor Program): Modernization

The Department of Homeland Security (“DHS”), through U.S. Citizenship and Immigration Services (“USCIS”) published a proposed rule on January 13, 2017 with the Office of the Federal Register (https://www.federalregister.gov/documents/2017/01/13/2017-00447/eb-5-immigrant-investor-program-modernization).

For immigrant investors who have not yet filed USCIS Form I-526 or who are undecided regarding their intent to invest, for I-829 petitioners, and for existing regional centers and/or entities intending to form regional centers, the proposed rule changes provide very important new considerations. The following is a summary of the major revisions proposed by DHS. 

PRIORITY DATE RETENTION

Certain EB-5 petitioners (I-526 Immigrant Petition by Alien Entrepreneur) with an approved petition may retain their priority date. In some circumstances, approved petitions might be associated with a terminated regional center or a petitioner may seek material changes to the qualifying underlying investment. This revision would avoid delays in visa processing and is important considering EB-5 visas may remain oversubscribed.

INCREASES TO THE INVESTMENT AMOUNTS To reflect present day dollar values, the standard minimum investment amount may increase from $1 million to $1.8 million. The minimum investment amount in a targeted employment area (“TEA”) may increase from $500,000 to $1.35 million. This revision represents an adjustment for inflation from 1990 to 2015; DHS would make regular adjustment for inflation every 5 years. 

TEA DESIGNATIONS

TEA designations for at the city or town level are currently only allowable where a state designates the city or town as a TEA. This revision will allow any city or town with an average unemployment rate of at least 150 percent of the national average rate and a population of 20,000 or more to qualify as a TEA. Moreover, this revision would give DHS the sole authority to designate certain geographic and political subdivisions as a TEA.

REMOVAL OF CONDITIONS

Regulations involving USCIS Form I-829 Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, which follows the successful adjudication of USCIS Form I-526, may be revised to state that derivative family members must file their own I-829 Petition when such family member is not included in the principal investor’s I-829 Petition. 

Comments close on April 11, 2017. If you are a current I-526 investor, are in the process of filing your I-829, or are considering EB-5 as your path to permanent residency in the U.S., please contact one of our Immigration Attorneys immediately to determine how the proposed rules will affect you. If you have questions or comments about this article, contact Lavelle Law at (847) 705-7555. You can email the author at vchhabria@lavellelaw.com.