Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. In 1992, Congress created the Immigrant Investor Program, also known as the Regional Center Program. This sets aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS based on proposals for promoting economic growth. https://www.uscis.gov/eb-5
The EB-5 Immigrant Investor Program, often known as the million dollar green card, is set to receive significant changes under the new final rule that was published July 24, 2019 by the U.S. Citizenship and Immigration Services in the Federal Register. The final rule is set to go into effect on November 21, 2019. This rule contains five major revisions including increases in minimum investment amounts, revised standards for some targeted employment area (TEA) designations and new authority with the Department of Homeland Security to designate TEAs, clarification of removal of conditions and retention of priority date for certain investors. The existing rules for initial petitions filed before November 21, 2019 remain in effect.
Changes that will largely effect new investors preparing to file after the effective date, November 21, surround the investment amounts and TEA designations. The investment amount for the standard EB-5 investment program has increased by 80% from $1 million to $1.8 million. TEA investments have also increased to $900,000, from $500,000, an equal 80%. The regulation further includes fiver year adjustments to be completed based on the Consumer Price Index for All Urban Consumers. The TEAs will no longer be state designated as they have been previously. The DHS will directly review and determine what geographic and political subdivisions qualify as high unemployment. USCIS indicates that so long as the area has seen an average unemployment rate of at least 150% of the national average unemployment rate, TEAs may now include cities and towns with a population of 20,000 or more outside of metropolitan statistical areas.
Clarifying regulations concerning the removal of conditions on permanent residence and the ability to retain a previously approved EB-5 petition’s priority date are well-needed advances in the program. USCIS provides that family members who are not expressly included in the removal of conditions petition must file their own removal of conditions petition to have their conditions removed. Additionally, interviews which were previously scheduled at the location of the commercial enterprise may now be set at the local office with jurisdiction over the commercial enterprise, the principal investor’s residence or where the petition is being adjudicated. For those investors who have already successfully obtained approval of a prior EB-5 petition, they will now have the ability to retain the priority date for any subsequent petition. Those prior petitions that have been revoked for material error or due to fraud or willful misrepresentation by the petition will be excepted.
While the increase in investment amounts may slow the influx of investors into the United States, the USCIS has defended its position by justifying the investment amount increases due to inflation since the inception of the program almost thirty years ago. The EB-5 can be a valuable vehicle for obtaining permanent residence in the United States. Hopefully, these changes prove to be useful for investors from abroad and to the United States where additional economic investment and job creation is still required.
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