USCIS has published its new final rule significantly changing the EB-5 Immigrant Investor Program to address concerns about fraud, abuse, and national security risks. The new regulations will become effective on November 21, 2019.

The EB-5 Investor Visa Program was created almost 30 years ago to incentivize foreign investments and create jobs in the United States, particularly in underserved areas.

Under the EB-5 Program, foreign investors (and their dependents) may apply for permanent residence (“green cards”) — and, eventually, citizenship — if they make the necessary investment in a commercial enterprise in the United States and create or preserve at least 10 permanent full-time jobs for U.S. workers. A certain number of these visas are set aside for individuals who invest in enterprises in designated regional centers — areas identified as having high unemployment. The EB-5 Program has been used effectively by many real estate developers. It was most popular among Chinese investors, but, recently, more investment has been coming from South America.

As a result of the popularity, however, applicants from certain countries that constitute the majority of the EB-5 investors suffer from extensive wait times for immigrant visa number availability. For example, Chinese nationals can wait for up to 15 years for their priority dates to become current, and processing times for the two sets of petitions that must be filed (Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status) can take from two years to four years each. Priority date issues will subside for Chinese nationals if the Fairness for High Skilled Workers Act (or the BELIEVE Act) is passed, but the wait times for entrepreneurs from other countries will grow.

Key changes in the new rule include the following:

  • The standard investment amount will increase from $1 million to $1.8 million.
  • The investment amount for regional centers will increase from $500,000 to $900,000.
  • In order to eliminate gerrymandering, states will no longer be able to designate regional centers; that will be reviewed and determined by DHS.
  • To improve the adjudication process and provide flexibility, certain derivative family members will have to file independently of the principal investor to remove conditions on their permanent residences. To help with priority date issues, in certain circumstances, petitioners will be able to retain priority dates from previously approved EB-5 petitions.

Jackson Lewis attorneys will continue to monitor the implementation of the new EB-5 regulations and are available to answer your questions about them.