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EB-5 Immigrant Investor Program Rule Changes To Become Effective November 2019

Posted July 29, 2019Kyle RobyArticles

 

On July 24, 2019, the U.S. Citizenship and Immigration Service (USCIS) published a final rule that makes a number of changes to the EB-5 Immigrant Investor Program. The final rule will become effective November 21, 2019.

The EB-5 program allows eligible individuals to apply for conditional lawful permanent residence in the U.S. if they make the necessary investment in a commercial enterprise in the U.S. and create or, in certain circumstances, preserve 10 permanent full-time jobs for qualified U.S. workers.

Under the final rule, new developments will 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, to account for inflation since the initial investment amount set by Congress in 1990. The rule also keeps the 50% minimum investment differential between a TEA (Targeted Employment Area) 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.

By definition, a TEA is a rural area or an area that has experienced high unemployment. A rural area is any area not within a metropolitan statistical area and the outer boundary of a city or town having a population of 20,000 or more. A high unemployment area is an area that has experienced unemployment of at least 150 percent of the national average rate.

TEA designation reforms: The final rule outlines changes to the EB-5 program to address manipulation of high-unemployment areas. As of the effective date of the final rule, the 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. This is an attempt to ensure that investments truly are in high unemployment areas, and limits investor and state strategies to link high and low unemployment areas together for TEA designation purposes.

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.

Additional information about the EB-5 program can be found here.

Please contact your designated Meltzer Hellrung attorney for additional information.