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The EB-5 Modernization Rule generated considerable changes to the EB-5 visa investment program in 2019, leaving EB-5 investors, project developers, and regional center managers with many unanswered questions. The final rule, published on July 24, 2019, by the Department of Homeland Security (DHS), is the most significant change to the EB-5 program since its inception in 1990. The United States Citizenship and Immigration Services (USCIS) held a public information session on March 13, 2020, where a good number of these questions were answered.
Priority Date Retention
Am I eligible to retain my priority date?
As an EB-5 petitioner, you may be entitled to retain the priority date of your previously approved I-526 petition (Immigrant Petition by Alien Investor) if you are required to file a new I-526 petition on or after November 21, 2019, due to circumstances beyond your control or for other reasons you might have for refiling. This change will avoid delays in immigrant visa processing associated with the loss of a priority date. The DHS expects that priority date retention will become especially important due to the strong possibility that the EB-5 category will remain oversubscribed for the foreseeable future. This benefit is only valid if you are applying from outside of the United States and does not apply if your previous I-526 petition was rescinded for fraud or willful misrepresentation.
How do I request to keep my earlier priority date?
To make sure your new I-526 petition is filed with your existing priority date, you will need to include a letter along with a copy of Form I-797 (Notice of Action), which was issued when your petition was approved, in which you formally request priority date retention. In addition, you should fill out and include Form I-824 (Application for Action on an Approved Application or Petition) with your application.
Increased Minimum Investment Amount
What are the new minimum EB-5 investment amounts?
For investments in targeted employment areas (TEA), the minimum amount increased from $500,000 to $900,000, while investments outside of a TEA increased from $1 million to $1.8 million. These amounts represent an adjustment based on inflation, as authorized by the law, and will adjust automatically every five years going forward.
What date did the new minimum investment amounts go into effect?
These amounts went into effect on November 21, 2019, but if you filed before November 21, you are be eligible for the previous minimum investment amounts of $500,000 or $1 million, even if your petition was pending on the date of the rule change and even if you had not yet contributed the full investment amount to the new commercial enterprise (NCE).
If I file a new I-526 petition but retain my original priority date, which minimum investment amount am I subject to?
With no exceptions, the new rules apply to any EB-5 investor who filed on or after November 21, 2019. If you file a new I-526 petition, you will need to fulfill the new rule requirements and invest the new minimum investment amounts of $900,000 or $1.8 million, even if you retained your priority date.
Targeted Employment Area (TEA)
Who will be affected by the new TEA changes?
All EB-5 investors who filed an I-526 petition on or after November 21, 2019.
How can I determine whether my EB-5 project is in a high-unemployment TEA?
The USCIS accepts the unemployment data provided to the public by both the Census Bureau through the American Community Survey (ACS) and the Department of Labor’s Bureau of Labor Statistics (BLS) as verifiable sources for evidence. But whichever source of data you use, you must be consistent.
What do I need to do to prove that my EB-5 project is located in a TEA?
Under the revised rules set by the DHS, EB-5 investors can submit the following documentation to prove that the area in which the NCE is primarily doing business is located in a TEA:
- The site where the NCE is predominantly doing business
- A map that identifies the census tract(s) in which the NCE is predominantly doing business as well as directly adjacent tracts, if applicable
- The calculations used to establish the weighted average of the unemployment rate for the specified area
- Verifiable data of unemployment statistics
- Evidence showing that reliable and verifiable methods were used to obtain the unemployment statistics
Can a TEA certification from an I-526 petition approved before November 21, 2019, be used for a separate petition from the same investor filed on or after November 21?
No. All I-526 petitions filed after the new rule went into effect are subject to the new TEA rules, without exception.
Removal of Conditions on Permanent Resident Status
Do my spouse and children have to file their own separate I-829 petitions?
Yes, every family member is required to file a separate I-829 petition. When filing, your spouse and children must attach a copy of your Form I-797 relating to your Form I-829. The only exception is if you, the EB-5 investor, dies during the waiting period, in which case your spouse and children submit a joint petition. If your child marries or turns 21 during the two-year conditional permanent residency period, or you divorce your spouse during these two years, your children or spouse will still receive a green card if your I-829 petition is approved.
