Questions about the EB - 5 Modernization Rule

Questions about the EB-5 Modernization Rule

United States Citizenship and Immigration Services (USCIS) implemented the EB-5 Modernization Rule in 2019. The new rule resulted in major changes to the EB-5 visa program, as well as a great deal of questions from EB-5 investors, developers, and regional center managers. USCIS cleared up some of those questions on March 13, 2020, during a public engagement.

Priority Dates

Who can retain their priority date?

EB-5 investors applying from overseas may be able to retain their priority date from a previously approved I-526 petition when filing a new one on or after November 21, 2019. However, this is only applicable to EB-5 investors who have not had their prior I-526 petitions revoked for willful misrepresentation or fraud.

What does an investor need to do to retain an earlier priority date?

To retain their existing priority date when filing a new I-526 petition, EB-5 investors should include a letter requesting that their priority date be retained. A completed Form I-824 should accompany the application as well.

Minimum Investment Amounts

What is the effective date of the new minimum EB-5 investment amounts?

The new minimum investment amounts went into effect on November 21, 2019. They are applicable to all EB-5 investors who filed their I-526 petition on or after that date. The previous minimum investment amounts apply to investors who filed prior to that date, regardless of their petition’s status or whether they had transferred their full investment amount.

What are the new minimum investment amounts?

For target employment areas, the new minimum is $900,000. For non-target employment areas, the new minimum is $1.8 million.

Which minimum investment amounts apply to investors who are filing a new I-526 petition but retaining their earlier priority date?

EB-5 investors filing on or after November 21, 2019, are subject to the new minimum investment amounts, as well as the other new rules and requirements. There are no exceptions.

Targeted Employment Areas

Who does the targeted employment area (TEA) changes affect?

The TEA changes affect only EB-5 investors who filed on or after November 21, 2019.

What sources can EB-5 investors use to determine if a project is in a high-unemployment TEA?

EB-5 investors can use the American Community Survey (ACS) and the Department of Labor–Bureau of Labor Statistics (BLS) as sources. However, investors must be consistent with the source they choose to use.

What evidence do EB-5 investors need to provide to prove their project is located in a TEA?

Per USCIS, EB-5 investors must provide the location where the new commercial entity (NCE) conducts most of its business, a map showing the census tract(s) where the NCE conducts most of its business as well as applicable directly adjacent tracts, the calculation for determining the weighted average employment rate in the location, reliable unemployment statistics for the location, and proof that the provided data are credible.

Does TEA designations from approved I-526 petitions filed before November 21, 2019, apply to new petitions from the same investor?

The new TEA rules apply to I-526 petitions filed on or after November 21, 2019, without exception.

Removing the Conditions from Permanent Resident Status

Are separate I-829 petitions required from the spouses and children of EB-5 investors?

Each person associated with an EB-5 investment has to file his or her own I-829 petition. An EB-5 investor’s spouse and children may only file a single petition if the investor has passed away. Both divorced spouses and children who are married or older than 21 remain eligible for a U.S. green card under the EB-5 investor’s principal I-829 petition so long as the divorce or the children’s marriages or 21st birthdays occurred during the two years of conditional permanent residency.

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