USCIS has issued new regulations that makes changes to important provisions of the employment-based fifth preference (EB5) immigrant investor visa program. The changes will require that ongoing EB5 investment projects review, and likely modify, their business plans, economic analyses and legal documents (e.g., private placement memoranda, subscription agreements) to reflect the new requirements.
The new regulations apply to all EB5 petitions received by USCIS on or after November 21, 2019. There is expected to be a rush of new EB5 investments and petitions filed with USCIS before November 21, 2019, as petitioners seek to avoid the increased investment requirement.
Required investment will increase
The minimum investment required to qualify for EB5 will generally increase to $1.8 million from $1 million. The required minimum investment required for investments made in targeted employment areas will increase to $900,000 from $500,000.
In addition, the required minimum investment will increase in future years to adjust for inflation.
This change will decrease the number of immigrant investors interested in investing in America. The number of new jobs created through EB5 for American workers will decrease by at least 50%. American businesses seeking financing through EB5 will find it harder to obtain such investment, but will need to attracted fewer individual EB5 investors to raise the same amount of investment.
As noted above, the increased investment requirement apply only to EB5 petitions received by the USCIS on or after November 21, 2019. There is no increase for individuals, whose petitions are approved, or pending, prior to that date.
Changes to targeted employment areas
Under current law, the power to designate targeted employment areas (TEAs) is held by each state. The new regulations will strip the states of this power and give USCIS sole authority to designate a TEA. This change is likely to (1) increase the time it takes to receive a TEA designation and (2) decrease the likelihood of receiving a TEA designation.
Under current regulations, TEAs must be comprised of census areas that are contiguous to each other. Under amended regulations, all of the census areas must be directly contiguous to the census area where the EB5 job creating business is located. The impact of this change will be to greatly restrict the number of locations that qualify as a TEA.
As a result of this change, it will be harder for projects in the US to attract EB5 investors and fewer parts of the US will be able to create jobs for American workers using EB5 funds.
A TEA is a census area whose rate of unemployment exceeds the US national average by 150 percent or more. In addition, two or more contiguous areas whose combined unemployment rate hits that benchmark can be designated a TEA. The latter is affected under the new rule, which takes the authority to designate that group away from the state government and gives it to USCIS, while at the same time limiting what census areas can be combined into the group.
Priority date retention
US law limits the number of people who can immigrate each year through EB5. The limited supply of EB5 visas is allocated in part based on the date the EB5 petition was received (priority date). Under current regulations, if an EB5 investment materially changed or an immigrant wanted to change investments after the petition was granted, the immigrant investor might lose that priority date and their immigration would be delayed. The new regulations preserve the original priority date for investors with multiple approved EB5 petitions.
This is a positive change that will help a small subset of EB5 immigrants to avoid even longer immigration waiting times when their investment plans change over time.
The EB5 immigrant investor program was created in 1990. EB5 grants resident status to investors and their accompanying immediate family members, provided they satisfy a number of requirements which, for the most part, remain unchanged by the new regulations. The final rule does not, for example, change the requirements that:
- An EB5 investor create at least 10 full-time equivalent (FTE) jobs for US workers.
- The jobs must either be created before the petition is filed or the investor must submit a comprehensive business plan that shows the jobs will be created before the conditional basis of resident status is removed.
- The investor show that the source of the invested funds is “lawful.”
- The invested funds be at risk in an active commercial business located in the US.
For more information
The full text of the final rule was published in the Federal Register and is available online, click here to read.
For more information, please contact your lawyer at Dentons or the authors.