Last year, the DHS accelerated its rule-making schedule to adopt proposed new regulations on the EB-5 regional center program in February of 2018. The new EB-5 regulations increase minimum investment amounts, centralize TEA designations at DHS, and allow for certain EB-5 petitioners to retain their original priority date should they decide to re-file their EB-5 petition.
When an agency publishes a final rule, the rule is generally effective no less than thirty days after the date of publication in the Federal Register. If the rule is a “significant” or “major” rule, as defined by law, then the rule is required to have a 60-day delayed effective date. A “significant rule,” as defined by Executive Order 12866, is any regulatory action that is likely to result in a rule that may “have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities.”
Based on the content of the new EB-5 regulation, it is likely that there will be a 60-day grace period if the final EB-5 regulation is actually published in February before the final regulation takes effect. This grace period may provide Congress with additional time to reach consensus on future reforms to the EB-5 Regional Center Program.
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