New EB-5 Regulations Scheduled for February 2018

Congress and the White House have deadlocked on legislative changes to many immigration programs, including the EB-5 Regional Center program. However, the Department of Homeland Security’s schedule appears on track to deliver new EB-5 regulations in February 2018.

Washington, D.C., January 16, 2018: As Congress debates legislative changes to the EB-5 Regional Center program ahead of the January 19, 2018 deadline for renewing the program, the Department of Homeland Security’s (DHS) schedule appears on track to deliver new EB-5 regulations in February 2018.

Last fall, the DHS accelerated its rule making schedule to adopt proposed new regulations on the EB-5 Regional Center program in February 2018. The original deadline for the final adoption date of the new regulations was April 2018. The proposed EB-5 regulations, made available to the public in January 2017, included changes such as increasing the minimum investment amount from US$500,000 to US$1.35 Million for investments located in TEA’s. Investments outside of Targeted Employment Areas (TEA) would increase from the current US$1 Million to US$1.8 Million.

The proposed EB-5 regulations would also allow certain EB-5 petitioners to retain their original priority date should they decide to file a second and later EB-5 visa petition. This innocuous but helpful rule would permit EB-5 investors to refile their I-526 visa petition without losing their place in the mainland China EB-5 visa waiting list if they are forced to change investment projects. The proposed rule would give DHS the final decision-making power over TEA designations, replacing the current DHS deference to state and local agencies.

In the past week, Congress and the White House have deadlocked on legislative changes to many immigration programs, including the EB-5 Regional Center program. Short-term solutions have been repeatedly adopted since September 2015 to extend the program without changes. Some observers expect a new short-term extension of the program until March 2018 without changes, to allow negotiations on Capitol Hill to continue. The potential for DHS to implement new EB-5 regulations in February 2018 raises the pressure on Congressional negotiators to reach consensus on future reforms to the EB-5 Regional Center program.

I.A. Donoso & Associates, LLC, is a law firm based in Washington, D.C., and is recognized as a leading immigration law firm with recognized expertise in visas for EB-5 investors, professionals and academics.