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DHS Issues Notices of Proposed Rulemaking for EB-5 Immigrant Investor Program

DHS has issued a notice of proposed rulemaking entitled EB-5 Immigrant Investor Program Modernization. See 82 Fed. Reg. 4738 (Jan. 13, 2017). This notice addresses (1) Priority Date Retention, (2) Increases to Investment Amounts, (3) TEA Designations, and (4) Removal of Conditions.

Of particular note, DHS proposes to increase the standard minimum investment amount to $1.8 million for 2017 to account for inflation since the creation of the EB-5 program. This amount would be further adjusted for inflation every 5 years, and rounded to the nearest $100,000. The TEA investment amount would be set at 75% of the standard minimum investment, meaning $1,350,000 for 2017. Additionally, DHS proposes to eliminate state designation of high unemployment areas and instead make such determinations itself.

DHS has also announced in an Advance Notice of Proposed Rulemaking that it is considering making changes to the EB-5 Regional Center Program. See 82 Fed. Reg. 3211 (Jan. 11, 2017).  

The regulatory changes are intended to (a) better reflect business realities for regional centers and EB-5 immigrant investors, (b) increase predictability and transparency in the adjudication process for stakeholders, (c) improve operational efficiency for the agency, and (d) enhance program integrity. Topics for which the USCIS seeks comment include:

(1) the process for initially designating entities as regional centers,

(2) a potential requirement for regional centers to utilize an exemplar filing process,

(3) “continued participation” requirements for maintaining regional center designation, and

(4) the process for terminating regional center designation.

Interestingly, DHS intends to bifurcate the Form I–924 application process, first requiring a submission of a general application for initial Regional Center designation, followed by a more specific application for approval of an exemplar project.

DHS invites comments, data and other relevant information from interested parties by April 11, 2017.


Implications for Investors

New rules will not take effect until the agency reviews public comments and issues final regulations. This process generally takes several months to complete. Implementation of the proposal may also be affected by the administration of President Donald Trump, or by Congress as it considers the reauthorization of the EB-5 Regional Center program.

If you would like to discuss your options ahead of the proposed changes, please do not hesitate to Contact Us.

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