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Proposed EB-5 Program Revisions – January, 2017

United States Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security (DHS), has proposed a number of revisions to the EB-5 Program. These revisions were published in the Federal Register on January 13, 2017, and written comments will be accepted through April 11, 2017. The four primary revisions under consideration are as follows:

Priority Date Retention for EB-5 Petitioners. This revision would generally allow EB-5 petitioners with previously approved petitions to retain their earlier priority dates for use with subsequent petitions. Such petitions may, for instance, arise in the event that a regional center’s designation is terminated by USCIS or the petitioner makes material changes to his or her investment. The purpose for this change is to help petitioners avoid further delays in the EB-5 process.

Increases to Investment Amounts for TEAs and non-TEAs. This revision would increase the minimum required investment for all new EB-5 investors. For standard investments, the minimum investment threshold would increase from $1 million to $1.8 million. For investments in targeted employment areas (TEAs), the minimum investment threshold would increase from $500,000 to $1.35 million (75% of the standard investment amount). The change is intended to reflect inflation, and regular changes based on the Consumer Price Index for All Urban Consumers (CPI-U) will be made every 5 years.

Changes to the TEA Designation Process. This proposed revision would affect TEA designation in three ways. First, towns and cities with populations greater than 20,000 would now be eligible for TEA designation. Second, states would no longer be responsible for designating special TEAs; instead, special TEA designation would be handled directly by the DHS with the intent that such designations would be handled more consistently. Third, the DHS would make special TEA determinations at the census tract level—a census tract or group of contiguous census tracts may qualify as a TEA if the NCE is principally doing business in the census tract(s) and the weighted average unemployment rate of the tract(s) is at least 150% of the national average; if the tract(s) in which the NCE operates do not independently qualify as a TEA, any or all adjacent tracts can be included when calculating the weighted average unemployment rate.

Changes to the Filing and Interview Process for Removal of Conditions. This proposed revision would clarify and update certain elements of the removal of conditions process. For example, it would clarify language related to the filing process for derivative family members who file separate I-829 Petitions to remove conditions. It would also allow petitioners some flexibility in determining the location for the Form I-829 interview. Furthermore, the revision would update the regulations governing biometric data collection to reflect current practices.