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June 10 2017

Attorney Mark Ivener Summarizes Possible Changes to the Future of EB-5

On January 13th, 2017, the Federal Register published a document titled “EB-5 Investor Program Modernization.” The document served as a Notice of Proposed Rule-making for the EB-5 program, and discussed proposed updated rules and regulations pertaining to the program’s priority dates, minimum investment amounts required, and targeted employment areas.

For priority dates, the proposed changes would allow an EB-5 petitioner with an existing approved I-526 to use that same priority date on a subsequent I-526 that they plan on filing. The reason the investor is choosing to file an additional petition would have no bearing on their ability to use their original priority date. USCIS has also proposed to be mindful of inflation, and to thus increase the current minimum investment amount to $1,350,000. Attorney Mark Ivener specifies, “I believe the proposed increases will be no more than $1 million for the minimum amount.” Another major section of the proposed changes talks about Targeted Employment Areas (TEAs). USCIS is suggesting that DHS determines TEA qualifications using their own criteria, thereby eliminating state authority to gerrymander TEAs.

The comment period for this notice ended on April 11th, 2017, which means the new regulations can take effect at any time 30 days after publication in the Federal Register. However, Attorney Ivener commented that “Based on previous delays in past EB-5 & immigration regulations, I feel we won’t have new Rules before the expiration of the Regional Center extension on 9/30/17, when Congress is due to pass new EB-5 regulations.”