In a proposed rule published on 13 January 2017, USCIS / DHS moves to alter and modernize the EB-5 program for immigrant investors. The program allows individuals who are eligible to apply for lawful permanent residence in the United States if they make the necessary investment in a commercial enterprise in the United States and create or, in certain circumstances, preserve 10 permanent full-time jobs for qualified U.S. workers. USCIS is accepting feedback from all interested parties until 11 April 2017. The key areas which are proposed to change or codify existing practices are below.
Increase to the Minimum Investment Amount (for TEAs and nonTEAs)
Currently, the investment minimum for Targeted Employment Areas (TEAs) is $500,000 and $1,000,000 for non-TEAs. USCIS proposes to increase these significantly - for TEAs, to $1.35 million, and for non-TEAs to $1.8 million. These changes represent an adjustment for inflation from 1990 to 2015. In addition, DHS is proposing to make regular Consumer Price Index – for all Urban Consumers (CPI-U) - based adjustments in the standard minimum investment amount, and conforming adjustments to the TEA minimum investment amount every 5 years.
Revisions to the TEA designation process
DHS proposes to take over the TEA designation process, away from the current process in which a state may designate certain geographic and political subdivisions as high unemployment areas. Under the rule, any city or town with high unemployment and a population of 20,000 or more would qualify as a TEA.
Priority date retention for EB–5 petitioners
In a positive move, the rule would allow for EB-5 petitioners to authorize certain EB–5 petitioners to retain the priority date of an approved EB–5 immigrant petition for use in connection with any subsequent EB–5 immigrant petition. A priority date represents an immigrant's 'place in the queue' which will remain important as DHS believes the program will continue to be oversubscribed.
What Happens Now
The current re-authorization of the EB-5 program is set to expire on 28 April 2017. The new rule is a proposal only, so it will not become law until USCIS/DHS receives feedback from the public and eventually issues a final regulation.
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