Questions and Answers: EB-5 Immigrant Investor Program Modernization Rule – From the USCIS

EB-5 Visa

This article is reprinted from the USCIS website.

Priority Date Retention

Q. Who may benefit from the new EB-5 rule’s priority date retention provision?

A. Investors who file a new Form I-526, Immigrant Petition by Alien Investor, on or after Nov. 21, 2019, may use the priority date of a previously approved Form I-526 petition, subject to certain conditions.

Q. When would USCIS not allow the petitioner to use the priority date of a previously approved Form I-526 petition for a new Form I-526 filed on or after Nov. 21, 2019?

A. USCIS will not allow the petitioner to use the priority date of a previously approved Form I-526 petition for a subsequently filed petition if:

  • The investor was already admitted to the United States under section 203(b)(5) of the Immigration and Nationality Act using the priority date of the earlier-approved petition; or
  • USCIS revoked the previously approved petition for fraud or willful misrepresentation by the petitioner, or because the approval was based on a material error.

Q. How can investors request an earlier priority date?

A. As part of their new Form I-526 submission, investors may provide USCIS with a statement requesting the earlier priority date along with a copy of the approval notice (Form I-797) for the previous Form I-526. Investors can request a duplicate copy of the earlier approval notice using Form I-824, Application for Action on an Approved Application or Petition.

Minimum Investment Amounts

Q: What are the new minimum investment amounts that apply to EB-5 investors who file a Form I-526, Immigrant Petition by Alien Investor, on or after Nov. 21, 2019?

A: For investments outside of a Targeted Employment Area (TEA), the minimum investment amount increased from $1 million to $1.8 million. For investments in a TEA, the minimum investment amount increased from $500,000 to $900,000.  These amounts represent an adjustment based on inflation, as authorized by the law. Beginning on Oct.1, 2024, and every five years thereafter, these amounts will automatically adjust for petitions filed on or after each adjustment’s effective date, and DHS may update this figure by publication of a technical amendment in the Federal Register.

Q: How does the new EB-5 final rule affect the minimum investment amount for investors who properly filed a Form I-526 petition before Nov. 21, 2019, but whose petitions were pending on the effective date of the final rule?

A: Investors who filed a Form I-526 petition before the effective date of the final rule may establish eligibility under the minimum investment requirements in effect when they filed the petition.

Q: How does the EB-5 final rule affect the minimum investment amount for investors who filed their Form I-526 petition before Nov. 21, 2019, invested only a partial amount of capital, and are actively in the process of investing the remaining amount of capital?

A: These investors must meet the requirements in effect when they filed the petition—this includes the requirement to show they can meet the prior minimum investment amount of either $500,000 or $1 million by having either invested or been actively in the process of investing the required amount at the time of filing. Petitioners must show actual commitment of the required amount of capital at the time of filing but do not need to have fully contributed their capital investment to the new commercial enterprise before the effective date of the new rule—instead, they may be actively in the process of investing the minimum investment amount required under the prior rule.

Q: How does the EB-5 final rule affect the minimum investment amount for investors who file a new Form I-526 petition on or after Nov. 21, 2019, but who seek to retain a priority date from a previously approved Form I-526 petition filed before Nov. 21, 2019?

A: All investors who file a new Form I-526 petition on or after the effective date of the rule, including those seeking to retain the priority date from a previously approved Form I-526 petition, must satisfy the requirements under the new EB-5 rule, including the increased minimum investment amounts.

TEA Designations

Q: How does the new EB-5 rule affect the TEA determination for Form I-526 petitioners who filed before Nov. 21, 2019?

A:  Investors who filed Form I-526, Immigrant Petition by Alien Investor, before the effective date of the final rule must establish eligibility under the requirements in effect at the time of filing the petition.

Q: Under the new EB-5 rule, investors seeking EB-5 classification can demonstrate that their investment is in a high unemployment TEA by providing evidence that the specified area in which the new commercial enterprise is principally doing business has had an unemployment rate at 150% of the national average rate. What data sources should applicants and petitioners use to determine the unemployment rate, and where are they available?

A: The burden is on the petitioner to provide USCIS with evidence documenting that the area where the petitioner has invested or is actively in the process of investing is a high unemployment area at the applicable time of determination, and such evidence should be reliable and verifiable. USCIS believes that the unemployment data provided to the public by both the Census Bureau through the American Community Survey (ACS) and the Department of Labor’s Bureau of Labor Statistics (BLS) qualify as reliable and verifiable for petitioners to reference in order to carry their evidentiary burden.

Regardless of which reliable and verifiable data petitioners choose to present, the data should be consistent. For example, USCIS notes that, although BLS and the Census Bureau rely on the concept of the civilian labor force in their unemployment rate calculations, they use different methodologies. If petitioners rely on ACS data to determine the unemployment rate for the requested TEA, they should also use ACS data to determine the national unemployment rate.

Q: What is one way an EB-5 petitioner could present the evidence documenting that the area in which the new commercial enterprise is principally doing business is located in a TEA under 8 CFR 204.6(i)?

A: An EB-5 petitioner could provide the following about the relevant census tract or tracts, among other relevant documentation:

  • The location where the new commercial enterprise (or job creating entity, if applicable) is principally doing business
  • A map identifying the census tracts included in the proposed TEA (including only the tract(s) where the relevant entity is principally doing business and any or all of the directly adjacent tracts)
  • The underlying calculations for establishing the weighted average of the unemployment rate for the specified area
  • The reliable and verifiable data that serves as the source of the unemployment statistics for the proposed TEA
  • Evidence that the data used is reliable and verifiable (that is, petitioners must show that they used reliable and verifiable methods to obtain their unemployment statistics)

Q: To demonstrate that an area qualifies as a high unemployment TEA, petitioners must show that the unemployment rate for the area is at least 150% of the national average. To what decimal place does the unemployment rate need to be rounded to qualify? For example, if the unemployment for August 2019 for the United States is 3.7%, and 150% of that is 5.55%, would a weighted average of 5.445% qualify? What is the cut-off point?

A: The petitioner should round the weighted average unemployment rate for the area sought for TEA designation to the same decimal place as the unemployment rate used for comparison. In this example, to qualify as a TEA, the petitioner must establish a weighted average unemployment rate equal to or greater than 5.55%. If the petitioner’s weighted average results in a number with more decimal places than the 150% calculation (5.55% in this case), the petitioner should round his or her weighted average to the same number of decimal places as the 150% calculation. Rounding is based on the number following the number to be rounded. So, if the petitioner’s weighted average is 5.5447258%, the weighted average would round based on the third decimal place to 5.54% and would not qualify. However, if the petitioner’s weighted average is 5.5467258%, the weighted average would round based on the third decimal place to 5.55% and would qualify.

Q: Will USCIS accept a state certification of a TEA that was part of an approved Form I-526 petition before Nov. 21, 2019, for a separate Form I-526 petition filed on or after Nov. 21, 2019, based on facts that are materially the same?

A: No. USCIS will adjudicate each Form I-526 petition filed on or after Nov. 21, 2019, according to the new rule.

Removal of Conditions on Permanent Residence

Q:  If the principal investor’s derivatives (such as a child or spouse) were not included with the Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, and intend to file their own Form I-829, can they file together on a single Form I-829?

A:  They can only file together if the investor is deceased. Otherwise, each derivative must file a separate Form I-829 petition. If the derivative is filing a separate petition from the investor, the derivative should attach a copy of the investor’s Form I-797, Notice of Action, relating to the investor’s Form I-829.

Q:Does the new rule prohibit USCIS from adding a derivative to a pending Form I-829?

A:No, derivatives may still request to be added to a pending I-829 if they pay the biometric fee and are otherwise eligible to be classified as the principal’s derivatives. The new rule standardizes the process for those derivatives who file an individual Form I-829 petition and cannot be included on the principal investor’s Form I-829, generally because the principal fails or refuses to file a Form I-829.

Q:  Can principal investors include on their Form I-829 a child who reached the age of 21 or who married during the period of conditional permanent residence, or a former spouse who became divorced from the investor during the period of conditional permanent residence?

A:  Yes.