USCIS Proposes Changes to EB-5 Regulations to Modernize Program and Promote Reform Where Needed

Congress created the EB-5 program in 1990. The program was created in an effort to stimulate the economy through job creation and capital investments by foreign investors. Some would consider the EB-5 program to be in need of reform since the program has not experienced changes since 1992, when Congress created the Immigrant Investor Program. The Federal Register published a Notice of Proposed Rule Making, Titled EB-5 Investor Program Modernization. This notice was published on January 13, 2017 and proposes amendments to regulations governing fifth preference EB Category.

Department of Homeland Security (DHS) docket No. USCIS-2016-0006 provides a list of the proposed amendments to the EB-5 Category. These proposed amendments include, but are not limited to the following:

  1. Proposed Amendment to Priority Dates

The new proposed regulations would introduce priority date retention. This means that EB-5 petitioners would be allowed to use the same priority date on all and any subsequently filed petitions. Additionally, the proposed regulations would also limit the restrictions for choosing to file new petitions.

  1. Proposed Amendment to Investment Amounts

Currently, through the EB-5 program individuals are eligible to apply for Legal Permanent Residence in the United States 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.

At the moment, the investment amount for EB-5 investments is standard and does not account for inflation. The new EB-5 regulations, if proposed, would increase the standard to account for inflation. Moreover, it would reduce the differential between standard investment amounts and TEA (targeted employment areas) investment amounts. Lastly, it would contrive automatic increases that would occur every five years, based on inflation.

  1. Proposed Amendment to Targeted Employment Areas

DHS is proposing an amendment to targeted employment areas. This amendment would eradicate state terms of TEAs and it would have DHS determine TEA qualifications. In effort for DHS to determine TEA qualifications, DHS would apply its own standards to evidence or information brought forth and presented by investors and regional centers. Additionally, DHS is proposing eliminating state designations of high unemployment areas as method of designating TEAs.

  1. Proposed Miscellaneous Changes

Lastly, there are many propositions to miscellaneous changes. DHS has a proposal that would update the regulations and clarify definitions of key terms for the program to reach a wider audience. Also, DHS has a proposal to define a process that would allow the filing of Form I-829 by derivatives if the derivative is not already included on the principal’s petition.

Where proposed regulations for investments come into play, DHS trusts that a proposed increase in investment amount would increase investments in areas where it is most needed. However, DHS also recognizes that some of the benefits are intended to come with investment increases could counterbalance if some investors are deterred from investing at higher amounts.

The notice invites stakeholder to respond with data and analysis. DHS also welcomes comments regarding the proposed new regulations for EB-5 petitions and investors. Ultimately, the goal of USCIS is to modernize the EB-5 program and change the program where reform is needed.

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