Mark A Ivener, A Law Corporation

New EB-5 Regulations in Effect as of Nov. 21, 2019

The new EB-5 regulations came into effect on November 21, 2019, and several amendments have been introduced to the program.

Established in 1990 by the Immigration Act of 1990, the EB-5 Immigrant Investor Visa Program allows eligible, foreign investors to become lawful permanent residents by investing at least $900,000 to finance a business in the U.S.

New Standard Minimum Investments

The standard minimum investment amount is now $1.8 million, and investments in a targeted employment area (TEA) have been set at a minimum of $900,000. This is the first time the minimum investment amounts have increased since the inception of the EB-5 program in 1990, and as we advance, they will continue to increase in five-year increments.

Additionally, the Priority Date of an earlier-approved EB-5 immigrant petition may be retained by filing a new I-526 petition, subject to certain conditions.

Targeted Employment Areas (TEA)

A TEA — a rural area or an area with a high unemployment rate of at least 150% of the national average — designation is another change under the new regulations. A state is no longer able to determine what qualifies as a TEA. Instead, TEAs will be designated by DHS once the investment has been made. Specifically designated TEAs will now consist of a combination of census tracts that include the tract or contiguous tracts where the new commercial enterprise is principally doing business. Provided that they meet the criteria mentioned above, TEAs will now include cities and towns with populations of 20,000 or more outside of metropolitan statistical areas.

Spouse and Minor Unmarried Children

Prior regulations did not clearly define the process by which spouses and minor unmarried children may file a Form I-829 petition when they are not included on the principal’s petition. Now, where the investor’s spouse and children are not included in the investor’s petition to remove conditions, the spouse and each child must each file his or her own petition to remove the conditions on their permanent resident status, unless the investor is deceased.

Flexible Interview Locations

Lastly, interview locations are now more flexible. They can be scheduled at the USCIS office having jurisdiction over the immigrant investor’s commercial enterprise, residence, or place where the petition to remove conditions is being adjudicated.

Qualification Criteria for EB-5

Alongside the $900,000 minimum investment in a TEA, the qualification criteria for an EB-5 Visa include:

  • The investment must be in a going concern, and not the stock market;
  • The business must have been created after November 29. If the company was established before this date, the investment must substantially change the business;
  • Invested funds must belong to the applicant. The capital may be a loan or gift from a parent or other person, provided the appropriate gift taxes are paid where stipulated; and
  • Ten jobs must be created, and indirect job creation may only be counted if the qualifying investment is in a Regional Center.

Got More Questions?

Should you have any questions concerning the above or wish to explore your specific situation, please do not hesitate to give our offices a call (310) 477-3000 or contact us here.

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About the Author

Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.