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.
2. Are the new EB-5 Regulations retroactive?
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.
3. When Will New EB-5 Investments Become Available at the $900,000 Threshold?
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 designate 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 US$900,000 investments may not be available for some months after November 21, 2019 – unless USCIS publishes rules before that date.
4. If I Have a Pending I-526 EB-5 Visa Petition, will I Have to Invest More Capital to Keep My Visa Process?
No. The new EB-5 Regulations do not require EB-5 investors that 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 are the priority date retention rules for second EB-5 visa petitions (see below).
5. Will the New EB-5 Regulations Allow for Priority Date Retention?
Yes. The new EB-5 Regulations allow EB-5 investors whose I-526 visa petition was 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, regional center related issue or investor issue (so long as it is not fraud or 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.
6. I Invested in a New Commercial Enterprise that had a Pending I-924 Exemplar. Will USCIS Adjudicate that Application Differently after November 21, 2019?
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.
7. Are TEA Designation Letters Valid after 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.
8. Are Approved I-924 Exemplars from Before November 21, 2019 Valid Today?
Partly yes and partly no. An I-924 Exemplar approved before November 21, 2019 is valid and applicable to 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 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.
8. If My Current I-526 Visa Petition is Approved, Will the New EB-5 Regulations Affect Me?
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.
9. Do the new EB-5 Regulations Change the Number of Visas Available for the EB-5 Program?
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 are 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 that 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.