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EB-5 Immigrant Investor Program Modernization Rule Is Moving to the Final Stage

On June 27, 2019, the Office of Management and Budget (OMB) announced that EB-5 Immigrant Investor Program Modernization (RIN: 1615-AC07) has reached the final stage in the rulemaking process. Therefore, we expect the Final Rule to be published in the Federal Register within the next few days.

United States Citizenship and Immigration Services (USCIS) will announce the publication of the Final Rule on the USCIS Federal Register Announcements page. Interested parties can sign up on the page to receive email updates.

The Content of the Final Rule

Although the specific content of the Final Rule will not be publicly available until its publication, based on the proposed rule published in January 2017, we expect changes to EB-5 investment amounts and the regulations governing targeted employment areas (TEAs). For example, we expect minimum investment amounts to increase to $1.35 million or $1.8 million, depending on the location of the project. Nevertheless, because we do not know what changes OMB and USCIS have made to the rule since it was first proposed in January 2017, these amounts are an educated guess rather than a certainty.

The Effective Date of the Final Rule

The Final Rule will include a date on which the changes come into effect. This date will probably be 30 to 60 days after publication. It is important to note that the changes will affect only future I-526 filings. In other words, the new regulations on minimum investment amounts will not affect I-526 applications filed before the effective date set out in the Final Rule.

Additionally, after publication and before the effective date, Congress and the Government Accountability Office review the regulation. This may lead to delays in implementation. Similarly, implementation could be delayed if someone institutes legal action in federal court that necessitates judicial review. However, it is impossible to anticipate either type of delay.

The Implications of Changes to the EB-5 Program

The key implication of the looming changes is that those who want to take advantage of the lower EB-5 investment amounts need to do so now. It is important for investors to bear in mind that this news is likely to lead to a filing surge, so those who were born in countries that are currently experiencing backlogs and who are not part of the initial surge may find themselves facing even longer visa wait times. For example, during the grace period, several thousand investors are likely to submit EB-5 petitions, with half expected to be Indian nationals. For Indian nationals, this could add years to the current backlog.

To discuss your EB-5 investment options, including the advantages and disadvantages of beginning the investment process now, schedule a call with Sam Silverman, our managing partner, today.