The Department of Homeland Security (DHS) has released for public comment its amendments to the regulations governing the EB-5 Immigrant Investor classification: The EB-5 Immigrant Investor Program Modernization Rule.

The EB-5 program provides green cards to foreigners who invest in projects that create at least 10 jobs. The standard required investment amount has been $1 million. However, a $500,000 investment in a designated “Targeted Employment Area” (TEA) has sufficed. A TEA is a state-identified area of high unemployment, generally a rural area that has been designated for economic development, and is located in an approved Regional Center covering the geographical area that includes the given TEA. The program has been very popular and it is estimated that 90% of the EB-5 visas have been issued pursuant to projects in TEAs.

Of late, the program has been highly scrutinized and received accompanying public attention. There have been complaints about gerrymandering the boundaries of the regional centers to patch together areas of high unemployment. In 2016, the Securities and Exchange Commission filed a criminal complaint against Regional Centers in Vermont, including two ski resorts that appeared to be Ponzi schemes. The resorts were seized and put into receivership, leaving some innocent investors vulnerable to deportation. There have been lobbying efforts to change the rules so that defrauded investors could obtain green cards.

The new rule would:

  • Allow foreign nationals to retain priority dates should their initial investment fail or stall while they are waiting for their date to become current;
  • Increase investment amounts from $1 million to $1.8 million and from $500,000 to $1.35 million to reflect current dollar values; and
  • Centralize with DHS the power to designate regional centers, thus removing that responsibility from the states.

Although this proposed rule was released for public comment prior to January 20, 2017, any further action on this rule will have to await review by the new Trump Administration.

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Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice…

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.

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