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USCIS Releases Statement on EB-5 Final Rule Deauthorization

USCIS Releases Statement on EB-5 Final Rule Deauthorization

The EB-5 Immigrant Investor Program is widely viewed as an asset to the U.S. economy. Since 1990, the EB-5 program has allowed foreign nationals to apply for permanent resident status after investing the required amount of capital in a qualifying U.S. business. Since every EB5 investment must create the required number of jobs, the program helps reduce unemployment and provides U.S. businesses with invaluable support. Additionally, successful and high-net-worth foreign nationals are able to relocate to the United States through the EB-5 program and further benefit the country with their expertise.

Despite the EB-5 program’s positive impact, it has occasionally experienced turbulent periods due to the government’s administrative decisions. For instance, on June 22, 2021, a U.S. district court ruled that the EB-5 Modernization Final Rule must be deauthorized. The Final Rule, which had come into effect on November 21, 2019, raised the minimum required EB-5 investment amounts to $900,000 for targeted employment area (TEA) projects and $1,800,000 for non-TEA projects. After the June 22 decision, however, these amounts were restored to $500,000 for TEA projects and $1,000,000 for non-TEA projects. These lower minimum amounts were certainly good news for foreign nationals considering an EB-5 investment—many more potential investors would now be motivated to participate in the EB-5 program. However, United States Citizenship and Immigration Services (USCIS), which governs the EB-5 program, did not immediately react to the court’s decision. USCIS’s silence on the matter may have caused some uncertainty among investors wanting to take advantage of the newly lowered EB5 investment amounts. How would USCIS react to the Final Rule’s deauthorization?

USCIS finally broke its silence on July 7, 2021, and released a statement on its website regarding the court decision. The statement says the following:

“On June 22, 2021, the U.S. District Court for the Northern District of California, in Behring Regional Center LLC v. Wolf, 20-cv-09263-JSC, vacated the EB-5 Immigrant Investor Program Modernization Final Rule (PDF). While USCIS considers this decision, we will apply the EB-5 regulations that were in effect before the rule was finalized on Nov. 21, 2019, including:

  • No priority date retention based on an approved Form I-526;
  • The required standard minimum investment amount of $1 million and the minimum investment amount for investment in a Targeted Employment Area (TEA) of $500,000;
  • Permitting state designations of high unemployment TEAs; and
  • Prior USCIS procedures for the removal of conditions on permanent residence.

In other words, we are applying the regulations in effect before Nov. 21, 2019, on this website and in the USCIS Policy Manual, Volume 6, Part G, Investors. In addition, we again will accept the April 15, 2019, version of Form I-526, Immigrant Petition by Alien Entrepreneur, because the Nov. 21, 2019, version of the form reflects updates from the now-vacated rule.”

Evidently, USCIS has accepted the overturning of the EB-5 Final Rule. This statement confirms that USCIS will apply the lower investment amounts and the other pre-November 2019 regulations. Foreign nationals interested in making an EB-5 investment can now rest assured that USCIS is complying with the court ruling and that the reduced investment amounts have indeed come into effect.

However, potential EB-5 investors must act quickly to take advantage of this opportunity. USCIS or the Department of Homeland Security (DHS) may take administrative or legal action to overturn the court ruling and reinstate the higher EB-5 investment amounts. Schedule a free consultation with EB5 Affiliate Network to discover available EB-5 investment opportunities.