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Jan 17, 2017

DHS Moves to Raise EB-5 Investment Minimums, Change TEA Designation Procedure

Matthew Galati

On January 13, 2017, the U.S. Department of Homeland Security issued a Notice of Proposed Rulemaking with respect to the EB-5 Immigrant Investor Program. The proposed rules would raise the minimum EB-5 investment amount to $1,350,000 and change the way that targeted employment areas (“TEAs”) are designated. The proposed rule is currently open for comments until April 11, 2017, which is shortly before the next Regional Center expiration date of April 28. A summary of the proposed changes to the EB-5 program is stated below:

Provision

Current Law

Proposed Changes

Min. Non-TEA Investment Amount

 $1,000,000

 $1,800,000

Min. TEA Investment Amount

 $500,000

 $1,350,000

Automatic Future Investment Adjustments

 None

 Beginning 5 years from enactment, will be adjusted every Oct 1, per theConsumer Price Index (CPI)

 

 

 

TEA locations which may qualify

  • Rural areas – outside of a Metropolitan Statistical Area (“MSA”) and city/town with a population of more than 20,000 people.
  • High unemployment area – area experiencing 150% of national unemployment average in practice, largely based on census tract data.
  • Any city / town with more than 20,000 people, experiencing 150% of national unemployment rate (“high unemployment”)
  • Specific counties within an MSA experiencing high unemployment
  • Specific census tracts with high unemployment
  • A Census tract, together with “any and all” adjacent census tracts, with an average high unemployment rate

TEA Process

  • For high unemployment areas, deference to state methodologies and designations
  • TEA designations ​controlled by USCIS

 

 

 

Priority Date Retention

  • None
  • Investor may retain priority date of an approved petition – non-transferrable

 

The proposed rule also includes miscellaneous changes regarding filings for derivative family members when not included in an I-829 filing with the Investor, flexibility in scheduling I-829 interviews, and general updates in line with current agency protocols following the dissolution of INS and the use of biometrics.

Notably, the changes to the investment amounts will be prospective in nature – going into effect at some point before the rule is finalized. The Green and Spiegel Investor Team will submit a comment to the proposed rules prior to April 11 and we will follow-up with an additional post in the coming week discussing our initial thoughts and reactions.

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