Washington D.C., November 26, 2019: The new EB-5 regulations went into effect on November 21, 2019.
Here is what you need to know:
For any visa petitions filed on or after November 21, 2019, the new minimum capital investment amounts apply. Minimum investment amounts increased to US$900,000 for investments in rural areas or high-unemployment areas (known as a Targeted Employment Area or “TEA”). For all other areas, the investment threshold is now US$1.8 million.
No. The new EB-5 Regulations expressly provide that they do not have retroactive effect. The new EB-5 regulations only apply to new I-526 visa petitions filed on or after November 21, 2019. Thus, I-526 visa petitions duly filed before November 21, 2019, are not impacted by these new rules.
We do not know at present when new investments will become available at the $900,000 threshold. The $900,000 investment threshold is only available if DHS / USCIS designates an area as a TEA. DHS/USCIS have not published any instructions, forms, procedures, or fees for obtaining a TEA designation. This means, for practical purposes, that $900,000 investments may not be available for some months after November 21, 2019—unless the USCIS publishes rules before that date.
No. The new EB-5 regulations do not require EB-5 investors who have already properly filed an I-526 visa petition to invest more capital to maintain their EB-5 visa process after November 21, 2019. The exception to this statement is the priority date retention rules for second EB-5 visa petitions (see below).
Yes. The new EB-5 regulations allow EB-5 investors whose I-526 visa petitions were approved (“Original EB-5 Petition”) to retain the priority date when submitting a second and subsequent EB-5 petition (“Second EB-5 Petition”). The rule only applies to approved I-526 petitions—even if the petition was eventually revoked due to a project-related issue, a regional center-related issue, or an investor issue (so long as it is not fraud, misrepresentation or material error by USCIS). Priority date retention is not available if the investor eventually obtained conditional lawful permanent resident status based on the original EB-5 petition.
No. If you invested in a New Commercial Enterprise (NCE) before November 21, 2019, and properly filed your I-526 visa petition before that date, and the NCE is waiting to receive a decision on an I-924 Exemplar Application from USCIS, the new EB-5 Regulations should not change the rules that USCIS will apply when making a decision on the pending I-924 Exemplar Application. Similarly, your I-526 visa petition properly filed before November 21, 2019, will be adjudicated by USCIS based on the rules in force before November 21, 2019.
Partly yes and partly no. A TEA designation letter issued by a state government prior to November 21, 2019, is valid only in respect of I-526 visa petitions that were properly filed before November 21, 2019. It is not valid for any visa petitions filed on or after November 21, 2019.
Partly yes and partly no. An I-924 exemplar approved before November 21, 2019, is valid and applicable to an I-526 visa petition filed before November 21, 2019. It is not, however, valid and applicable on or after November 21, 2019, in relation to any TEA designation. TEA designations on or after November 21, 2019, have to be issued by DHS/USCIS, and the regulatory agency has not yet issued any procedures or guidance on how to obtain such a designation. Additionally, it is unclear at present whether USCIS will give deference after November 21, 2019, to an I-924 Exemplar’s business plan (including financing estimates of EB-5 capital and budget figures) and offering documents. All of these documents relied on statements that assumed that EB-5 investors were contributing minimum capital investments of $500,000 or $1,000,000.
No, not likely. The new EB-5 regulations do not change the rules for I-526 visa petitions that are properly filed before November 21, 2019, and approved by USCIS.
No. The Final Rule does not change the rules regarding the number of EB-5 visas or the rules regarding waiting lists. Nevertheless, the increase in the investment thresholds to $900,000 for TEAs and $1.8 million for other areas is likely to have a two-fold effect on EB-5 visa usage. First, the Final Rule will cause a moderate increase in the number of EB-5 investors who are going to file I-526 visa petitions before November 21, 2019. Second, the Final Rule will likely cause a dramatic decrease in new I-526 visa petitions after November 21, 2019, because of the increased investment required and because USCIS has not yet issued rules for TEA designation (making it impossible for regional centers to offer new investments that qualify as new TEAs). Thus, predictions on visa waiting lists will have to be revised by the Department of State to take into account that new EB-5 visas will likely drop below 100-200 visas for the entire program after November 21, 2019, for the foreseeable future thereafter.
Donoso & Associates, a leading immigration law firm based in Washington, D.C., will continue to report on developments regarding the EB-5 Program and related regulatory and legislative issues through our news section of donosolaw.com.
SIGN UP TO LEARN MORE
AVAILABLE NOW?
Speak to your EB-5 immigration specialist on WhatsApp.
