The EB-5 Immigrant Investor Program Modernization Regulation (RIN 1615-AC07) is published on July 24, 2019 in the Federal Register. This final rule is in effective on November 21, 2019, 120 days from the date of publishing in Federal Register.
This final rule has increased standard minimum investment amounts from $1,000,000 to $1,800,000, and from $500,000 to $900,000 in a Targeted Employment Area (TEA). Meanwhile, TEA’s designation is subject to redefined rules, the TEA definition of a rural area remains unchanged. However, the specially designated high unemployment area may be designated by USCIS, not by the states as now. In addition, the final rule also provides priority date retention; clarifies USCIS procedures for the removal of conditions on permanent residence; as well as some miscellaneous changes.
This new rule is going to take effect in 120 days, unless there is litigation against USCIS regarding the regulation, or there is a new law overrule the regulation. To understand the rule in detail, please read entire document of the Regulation at https://www.govinfo.gov/content/pkg/FR-2019-07-24/pdf/2019-15000.pdf
EB-5 Immigrant Investor Program Modernization, 84 Fed. Reg. 142 (July 24, 2019). Federal Register
The July 2019 Visa Bulletin is published by the U.S. Department of State – Bureau of Consular (DOS). India and Vietnam each would reach their EB-5 visa annual limit during July, which is consistent with information provided by Chief of the Visa Controls Office at the US Department of State, Charlie Oppenheim, at the IIUSA conference last month. The bulletin revealed total 3 countries now have final action dates under the EB-5 visa category, they are:
• China (mainland born) Oct. 1, 2014
• India: May 1, 2017
• Vietnam: Oct. 1, 2016
Also stated on DOS’s July bulletin, both Vietnam and India “will be subject to the same date as to China” for the remainder of the fiscal year. Moreover, IIUSA predicted that the action will only be temporary, with the new fiscal started in October, India would likely “advancing to the summer or fall of 2017’ and Vietnam would “likely advancing to the fall or early winter of 2016”, at the first month of fiscal 2020.
U.S. Department of State – Bureau of Consular. (2019) Table: FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES. Retrieved from https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-july-2019.html
Invest In the USA (IIUSA). (2019). U.S. DOS Publishes July Visa Bulletin: India to be Subject to a Final Action Date for First Time. Retrieved from https://iiusa.org/blog/july-visa-bulletin-india-final-action-date/
On May 6, 2019, Chief of the Visa Controls Office at the US Department of State, Charlie Oppenheim, appeared at IIUSA EB-5 Advocacy Conference in Washington DC as keynote presenter. During his presentation, Mr. Oppenheim shared some of the firsthand data on EB-5 visa in FY219, also provided predictions on the EB-5 final action date movements. 【Here a link to Charlie Oppenheim’s presentation slides: https://iiusa.org/wp-content/uploads/2019/05/IIUSA-2019-EB5-Advocacy-Conference-Visa-Update-with-Charles-Oppenheim-1.pdf 】
Based on the current visa usage, Mr. Oppenheim confirmed that India will have its own final action date by June or early July of 2019. Furthermore, China will move to and remain on October 1, 2014, as well as Vietnam will move to and remain October 1, 2016; Brazil, South Korea and Taiwan will remain current for the remainder of FY2019.
Note: Reprinted from EB-5 Final Action Date Predictions from the U.S. Department of State, retrieved from https://iiusa.org/blog/eb-5-final-action-date-predictions-from-the-u-s-department-of-state/.
Invest In the USA (IIUSA). (2019). EB-5 Final Action Date Predictions from the U.S. Department of State. Retrieved from
Under current policies of USCIS, every EB-5 Investor is required to retain his or her investment capital “at risk” in the NCE until that EB-5 Investor has been in the U.S. for 2 years in conditional resident status (the “Sustainment Period”). For EB-5 investors facing EB-5 quota backlog or for the purpose to satisfy the sustainment period, many required to retain their investment capital “at risk” for a period longer than a 5-year loan term. As long as your I-829 has not been approved, redeployment may be necessary.
IIUSA sent a memo to USCIS regarding redeployment recently regarding redeployment policy on April 8. In the memo, IIUSA expressed the industry’s concern of lacking redeployment guidance and specifying the enormous impact redeployment has on the EB-5 industry. The memo concluded by stating IIUSA’s wiliness to maintain open and constructive dialogue with USCIS seeking sustainable implementation of the Redeployment policy.
IIUSA stated in the memo,
• EB-5 law does not require at-risk redeployment in NCE
• If redeployment is necessary, redeployment in any NCE should be acceptable
• Redeployment should be allowed outside the regional centers’ area and the TEAs
• Need to clarify redeployment policies regarding material changes and withdrawals
IIUSA suggested that:
• Modify project documents to meet reinvestment requirements should not be considered as major changes
• Redeployment before obtaining a conditional green card should not be considered a material change; and
• Investors have the right to withdraw during redeployment. This should not be considered as violation of EB-5 law requirements.
Invest In the USA (IIUSA). (2019). IIUSA Sends Memo to USCIS on Redeployment Policy. Retrieved from
President Trump signed the Consolidated Appropriations Act, 2019 (federal funding bill) on February 15, thus avoiding another government shutdown. The spending bill funds the federal government and extends the EB-5 Regional Center Program authorization through September 30, 2019. EB-5 stakeholders are resuming efforts towards achieving EB-5 reform and long-term reauthorization.
Regulatory Actions Currently Under Review on the list of The Office of Management and Budget shows that the EB-5 Modernization Regulation advanced on Friday 2/22/2019 to the OMB Review stage.OMB Review is the last step in the rulemaking process before publication in the Federal Register.
Below is a summary of the EB-5 Immigrant Investor Program Modernization published in the Notice of Proposed Rulemaking for RIN: 1615-AC07, which was published in January 2017. DHS just spent two years making some kind of changes. Now the most stirring question for all is what will be in the Final Rule.
• Increase the standard minimum EB-5 investment amount to $1,800,000, or $1,350,000 in a TEA.
• A TEA is based on high unemployment and incentivized with 25% reduction to the investment amount (not other factors or incentives as proposed by Congress).
• A TEA can only be designated for a high-unemployment MSA, county, city, single census tract, or limited group of census tracts. DHS, not the states, is responsible for TEA designation.
• Give priority date protection (an investor with an approved I-526 could choose to file a new I-526 while keeping the original priority date, subject to certain restrictions)
• Spouse and children may be able to file I-829 even if not included on the principal investor’s petition.
• Other technical changes.
EB-5 Regional Center Program authorization granted in 2018 has been active again after President Trump signed a short-term spending bill to end the partial government shutdown and re-open government last Friday evening. The continuing resolution would extend previous funding and authorities for 3 more weeks till February 15, 2009.
During the shutdown from December 22 to January 25, USCIS continued to accept regional center I-526 and I-485 filings, only the adjudications were delayed. IIUSA promises it will continue to visit offices and advocate on EB-5 Regional Center program’s stakeholder’s behalf.
Invest In the USA (IIUSA). (2019). EB-5 Regional Center Program Receives Three-Week Extension. Retrieved from https://iiusa.org/blog/eb-5-regional-center-program-recieves-three-week-extension/
On Thursday, December 6, Congress sent President Trump a short-term spending bill to move back the deadline for a partial government shutdown until December 21, 2018. Both the House and the Senate passed the legislation by voice vote on Thursday. Trump is expected to sign the measure. These measures would thus extend the current EB-5 Regional Center program without change until December 21, 2018.
The EB-5 Regional Center program was supposed to expire Friday, December 7 at midnight. As Congress participated in memorial events for former president George H.W. Bush, lawmakers have decided to delay this deadline to December 21.
The two-week extension provided will provide opportunity for investors to file their I-526 petition with USCIS, before the probable EB-5 program Reform, which could see an increase to the minimum investment levels from $800,000 to $1,800,000. Even though the final investment amount has not been agreed upon, an increase in the investment measure will soon occur.
Werner, E. (2018, December 6). Congress sent President Trump a short-term spending bill Thursday to move back the deadline for a partial government shutdown. Retrieved from https://www.washingtonpost.com/business/economy/house-passes-short-term-spending-bill-setting-up-pre-christmas-shutdown-fight/2018/12/06/208144ce-f4c6-11e8-bc79-68604ed88993_story.html?utm_term=.f94ef845d1d8
Washington Update: EB-5 Regional Center Authorization Receives Short Term Extension until December 21st. (2018, December 6). Retrieved from https://www.marketwatch.com/press-release/washington-update-eb-5-regional-center-authorization-receives-short-term-extension-until-december-21st-2018-12-06
Due to the hotel’s prestigious location in Chicago’s downtown financial district, where we already have developed two successful Marriott hotels (the 610-key JW Marriott and the 381-key Residence Inn) we have studied the economic benefits adding one more floor of hotel rooms so our new Marriott Autograph Collection Hotel would have 310 rooms instead of the planned 232 rooms at the 208 S. LaSalle Street location. Adding one more floor would cost approximately 15 million more to the project cost but will generate substantial additional income and value. The resulting return on cost will be enhanced, thereby reducing project risk.
We feel this is a positive development and will not require an increase in the current EB-5 funds that we intend to raise. We’re looking to start the construction in the beginning of 2019 and will keep you posted on the progress.
According to IIUSA, President Trump signed a short-term continuing resolution (CR) on Friday, September 28. This temporary funding bill defers the deadline for unmade decisions about government funding and programs, including the EB-5 Regional Center Program, to December 7, 2018.
Recall the last time Congress voted a prolonged regional center program extension was 2012. Since then, the program has been extended a few months at a time, relating to government funding.
Below is a graph of history of regional center program authorization since 1992
Figure. The History of Regional Center Program Authorization, 1992-2018. Adapted from “RC program authorization (12/7/2018),” by S Lazicki, 2018, EB-5 Blog. Retrieved October 4, 2018, from https://blog.lucidtext.com/category/eb-5-law-policy/
Invest In the USA (IIUSA). (2018). EB-5 Regional Center Program Extended Through December 7th. Retrieved from https://iiusa.org/blog/eb-5-regional-center-program-extended-december-7th/
On June 19th, 2018, the U.S. Senate Committee on the Judiciary held an oversight hearing on the Immigrant Investor EB-5 Program. The well-attended committee hearing focused on reported fraud, abuse, and national security risks related to the program, and also future path for EB-5.
Throughout the hearing, the sole witness was USCIS Director Francis Cissna. Director Cissna summarized the program background; reported USCIS’s recent steps to improve the program administration and integrity; narrated much-needed proposed policy changes to reform the current program. Furthermore, advocated for legislative reform to address needed authorities for USCIS and to make programmatic changes. Director Cissna indicated that the proposed EB-5 Modernization and Regional Center regulations may take beyond the current September program authorization date to accomplish due to there are multiple agency priorities at the current time.
Attending members seemed open to reform legislation and continuation of the program citing the economic success of EB-5 program in their states.
For more information, you can watch YouTube video record on the hearing at:
Cissna, Francis. (2018, Jun. 19). Hearing on “Citizenship for Sale: Oversight of the EB-5 Investor Visa Program” before the Senate Committee on the Judiciary on June 19, 2018 by USCIS Director L. Francis Cissna. Retrieved from https://www.uscis.gov/tools/resources-congress/testimonies-and-speeches/hearing-citizenship-sale-oversight-eb-5-investor-visa-program-senate-committee-judiciary-june-19-2018-uscis-director-l-francis-cissna
Greenberg Traurig, LLP. (2018, Jun. 19). Senate Judiciary Committee Holds Oversight Hearing on EB-5. Retrieved from https://www.natlawreview.com/article/senate-judiciary-committee-holds-oversight-hearing-eb-5