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Understanding the Proposed EB-5 Regulations

The EB-5 immigrant investor program offers foreigners an opportunity to obtain permanent legal status within the United States for both themselves and their immediate family members. Under the program, a person can get a create card if they make a sufficiently large investment in a qualifying project. This program has broad bipartisan support and it has helped to support many struggling American communities. However, in recent years, many have criticized perceived abuse of the EB-5 system. In response, new regulations have been proposed to ensure that the program serves its intended purpose. Here, we give a brief overview of some of the most important aspects of the newly proposed regulations.  

The Proposed Regulations Come from the Department of Homeland Security (DHS)

On January 13th, 2017, the DHS published a Notice of Proposed Rulemaking (NPR) regarding the EB-5 immigrant investor program. After an NPR is published to the federal register, there is an open comment period that lasts for 90 days. In this case, comments may be submitted until April 11th, 2017. If enacted, the proposed regulations contained within the rulemaking will significantly alter the EB-5 program. Three of the most important changes include:  

Priority date retention: In the context of immigration law, a priority date is the date at which an individual expresses their intention to immigrate to the U.S. through an official action. As there is a general immigration backlog in this country, having an early priority date is highly desirable. This is because it will likely lead to your application being processed more quickly. Priority date retention will allow some EB-5 applicants to retain their (earlier) priority date from a previous I-526 filing. This is extremely valuable in this context because sometimes key details of an investment change before the investment can be finalized. Priority date retention will ensure that applicants will not be forced to the back of the line in the event that their investment changes.  

Minimum required investment level: Unfortunately, these proposed changes are not all good news for immigrant investors. Previously, the minimum required investment level for a qualifying project was $500,000. The DHS is proposing to raise that investment level to $1.3 million. It should be noted that, according to DHS, this increase will not apply retroactively to any EB-5 petitions that have already been filed.

Targeted Employment Areas: Finally, for an investment to qualify, it must be made in a project that is located in an officially designated ‘Targeted Employment Area’ (TEA). TEAs are relatively impoverished regions that have high unemployment and are in need of investment. However, under the old regulations, huge swaths of the country, including some ‘upscale’ areas, were considered TEAs. The new proposed regulations seek to narrow the areas that qualify as TEAs. .

Do You Need Help With an EB-5 Immigrant Investor Program?

Navigating the EB-5 immigrant investor program can be challenging. Applicants should not go through this process own their own. At the Law Office of Joshua L. Goldstein, our immigration and entertainment industry attorneys have the skills and experience necessary to assist you with your EB-5 case. To learn more about what we can do for you, please call our L.A. office today at (213) 262-2000 to set up your initial immigration consultation.