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Summary: Notice of Proposed Rule for the EB-5 Immigrant Investor Program

The Department of Homeland Security (DHS) has issued a notice of proposed rulemaking to be published on January 13, 2017 to amend the regulations in relation to the employment-based, fifth preference (EB-5) immigrant investor classification and associated regional centers.  The purpose of the proposed amendments is to modernize the EB-5 program.  DHS will accept comments for 90 days, which must be received on or before April 11, 2017.  The program is currently set to expire on April 28, 2017, after having been given two short-term extensions from its original September 30, 2016 expiration date as part of the Continuing Resolution.

The notice of proposed rulemaking (NPRM) proposes a number of amendments that would greatly change the EB-5 program.  A summary of the major provisions are provided below:

Increases to the Investment Amounts – Increasing the Minimum Investment Amount 

  • Increasing the Minimum Investment Amount for High Employment Areas from $1 million to $1.8 million
  • Increasing the Minimum Investment Amount for TEAs from $500,000 to $1.3million
  • Adjust the Minimum Investment Amounts every 5 years
  • No mention of grandfathering or transition periods
  • TEA Designation

  • Allows any city or town with high unemployment (150% of the national average) with a population of  more than 20,000 to qualify as a TEA
  • Specific Counties within MSAs
  • Defines a TEA as a Census Tract (CT) or contiguous CTs in which the New Commercial Enterprise (NCE) is located if there is high unemployment
  • Also defines a TEA as a CT where the NCE is located and all other CTs spooled around the NCE CT if there is a weighted average of the unemployment at least 150% of the national average.
  • Rural areas qualify as TEAs, but would be redefined to include areas within the outer boundaries of any city or town having a population of 20k or more if in an MSA
  • Eliminated the ability of states to designate areas at high-unemployment.  This would all be done at the federal level
  • No mention of grandfathering or transition periods
  • Priority Date Retention – This would allow EB-5 Investors to retain their place in the priority date line, if through no fault of their own, their petition is denied e.g. the RC is terminated, or if business conditions change that would result in an underperforming or failing investment project

Other Technical Changes

  • Derivate family members must file their own petitions to remove conditions from their permanent residence in cases where they are not included in a petition to remove conditions filed by the principal investor (except in limited circumstances)
  • Allows for flexibility of interview location at the I-829 stage
  • Process for issuing permanent resident cards updated to conform to other procedures, i.e. the immigrant investor and derivatives will not need to report to a district office for processing of their permanent resident cards after approval of Form I-829

The NPRM’s stated aim is to reflect statutory changes and to modernize the EB-5 program.    Stakeholders are encouraged to review all materials and prepare to comment.

©2017 Greenberg Traurig, LLP. All rights reserved.

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About this Author

Laura Foote Reiff, Greenberg Traurig, business immigration lawyer, foreign company legal counsel, immigrant compliance attorney, targeted employment law
Northern Virginia Co-Managing Shareholder; Co-Chair, Business Immigration & Compliance Practice; Co-Chair, Global Human Capital Solutions

Laura Foote Reiff focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies, as well as related employment compliance and legislative issues.

Laura advises corporations on a variety of compliance-related issues, particularly related to Form I-9 alien employment verification matters. Laura has been involved in audits and internal investigations and has successfully minimized monetary exposure as well as civil and criminal liabilities on behalf of her clients. She develops immigration compliance...

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Robert Maples, Governmental Affairs, Greenberg Traurig, Law Firm
Director

Robert Y. Maples is experienced in the Washington, D.C. federal, state and public affairs arenas. He has also been an advocate for building pragmatic alliances to resolve major social issues and has pioneered strategies for addressing complex public affairs crises in collaborative versus confrontational contexts. He continues his advocacy of pragmatic alliances in furtherance of client/government collaborations among the Congress and federal agencies, and serves as state counsel on complex client public policy matters. He is experienced in complex problem solving in regulatory and legislative environments and his client interests have led to Food and Drug Administration (FDA) activities and cybersecurity representation.

Robert maintains a Washington presence for a consumer product manufacturer with matters before the FDA. He authors a daily FDA e-newsletter, FDA Tracker, and is active on FDA matters with daily posts and observations of FDA-related news with social media. Robert’s Twitter account, @FDA_Track, was recognized by the Regulatory Affairs Professionals Society for his FDA-related work on the "Using Twitter as a Regulatory Intelligence Tool: The 300 Accounts Worth Following" list.

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Kristen W.  Ng, Greenberg Traurig, Business Immigration Lawyer
Associate

Kristen W. Ng focuses her practice on business immigration and compliance matters. She advises individuals and companies on a wide range of immigration matters, including nonimmigrant and immigrant employment-based cases, citizenship issues (acquisition, retention and relinquishment) and investor cases (E-2 and EB-5). She communicates directly with clients, including HR managers, high-level executives, and employees to ensure comprehension of each respective immigration process and procedure and to collaboratively produce the best immigration strategy and approach for...

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