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USCIS Issues New EB-5 Immigrant Investor Regulations

July 30, 2019

The EB-5 immigrant investor program, first introduced in the early 1990s, has not had an overhaul since its inception. Major changes will apply to all I-526 petitions filed on or after the Effective Date of November 21, 2019.

Anyone filing during the next four months, therefore, would be eligible to file immigrant petitions at the current investment level. It is expected that with the rush to filing, the wait times for high volume countries including China and India will be prolonged by many years. Some of the larger Regional Centers that attract most of the EB-5 capital typical for their projects will likely no longer qualify under the new regulations and there is some question whether the new rule will become law. Lawsuits or congressional action could stymie implementation of the new regulations.

The new regulations will raise the minimum investment amount from $500,000 for TEA (Targeted Employment Area) to $900,000 and from $1 million to $1.8 million for non-TEA investments - almost double! It is predicted that TEA designations will become more restrictive and will be determined by the U.S. Department of Homeland Security (DHS) rather than the individual states. New procedures to remove conditions and permitting EB-5 petitioners to retain priority dates from previously approved EB-5 petitions are also a new change in the regulations.

The new regulations do permit investors who secure initial petition approvals to retain their priority dates (filing dates on the immigrant visa waitlist) in the event that the initial investment is abandoned or even revoked due to reasons other than misrepresentation or a determination of ineligibility at the time of filing. Priority dates that are used to immigrate as a conditional resident may not be used twice/again for a new petition and investors with project-related problems resulting in denials of petitions to remove conditional residence would need to start all over with no priority date retention.

Further, a 'material change' to an investment project resulting in the initial denial of the petition will provide no priority date, while a material change after approval of the initial petition marks a place in line and bestows a priority date to a family member. The regulations do not, however, provide any new protections for children who might age out of eligibility by reaching age 21, but does provide protections like those contemplated by the Child Status Protection Act.

Some interesting tidbits from the regulations also include scheduling of interviews with USCIS offices at the second stage of filing petitions to remove conditions - in addition to the initial interview, as well as the fact that if a petition is denied, a Notice to Appear will ensue, requesting that the applicant appear before an immigration judge in removal proceedings and surrender of a green card with no provision of temporary evidence of continuing residence status during the proceedings.

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