In 2019, the EB-5 Modernization Rule brought some major changes to the EB-5 visa investment program. The changes have left EB-5 investors, project developers, and regional center managers alike confused and full of questions. Some of these questions were finally cleared up during the United States Citizenship and Immigration Services (USCIS) public engagement held on March 13, 2020. Here are the answers to some of the most common questions about the EB-5 Modernization Rule.
Priority Date Retention
Who is eligible to retain their priority date?
Depending on an EB-5 investor’s circumstances, he or she may be eligible to retain the priority date of a previously approved I-526 petition when filing a new I-526 petition on or after November 21, 2019. This benefit is only valid for EB-5 investors applying from abroad and does not apply if the investor’s previous I-526 petition was revoked for fraud or willful misrepresentation.
How can EB-5 investors request to retain an earlier priority date?
To make sure their new I-526 petition is filed with their existing priority date, when EB-5 investors file their new I-526 petitions, they should include a letter in which they formally request priority date retention. In addition, investors should fill out and include Form I-824 in their applications.
Increased Minimum Investment Amount
What have the minimum EB-5 investment amounts increased to?
Targeted employment areas: $900,000
Non-targeted employment areas: $1.8 million
When did the new minimum investment amounts come into effect?
The new minimum investment amounts apply to any EB-5 investors who filed their I-526 petition on or after November 21, 2019. For EB-5 investors who filed before November 21, even if their petition was pending on November 21, and even if they have not yet transferred the full investment amount, the old minimum investment amounts remain valid.
If an EB-5 investor files a new I-526 petition but retains his or her previous priority date, which minimum investment amount is he or she subject to?
The new rules apply to any EB-5 investor filing on or after November 21, 2019, without exception. Investors filing new I-526 petitions must adhere to the new rules and requirements, including the new minimum investment amounts, regardless of whether they retain their priority date.
Targeted Employment Area (TEA)
Do the TEA changes affect EB-5 investors who filed before November 21, 2019?
No.
How can EB-5 investors determine whether an EB-5 project is in a high-unemployment TEA?
The American Community Survey (ACS) and the Department of Labor–Bureau of Labor Statistics (BLS) are accepted by USCIS as credible data sources. EB-5 investors must simply be consistent with whichever source they use.
How can EB-5 investors prove under the new rules that their EB-5 project is located in a TEA?
According to USCIS, EB-5 investors can submit the following evidence to prove the TEA designation of their chosen EB-5 project:
- The location where the new commercial entity (NCE) conducts the majority of its business activities
- A map that shows the census tract(s) in which the NCE conducts the majority of its business as well as directly adjacent tracts, if applicable
- The calculation used to determine the weighted average employment rate for the given location
- Credible unemployment statistics data for the given area
- Evidence backing up the credibility of other data provided
Can TEA designation from approved I-526 petitions filed before November 21, 2019, be carried over to new petitions from the same investor filed on or after November 21?
No. Any I-526 petitions filed on or after November 21, 2019, are subject to the new TEA rules, without exception.
