Questions and Answers: EB-5 Immigrant Investor Program Modernization Rule (2024)

Priority Date Retention

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

A.Investors who file a newForm I-526, Immigrant Petition by Alien Investor,on or afterNov.21, 2019,mayusethe priority date of a previouslyapproved Form I-526 petition, subject to certain conditions.

Q.When wouldUSCISnotallow the petitioner to usethe priority date of a previouslyapproved Form I-526 petitionfora new Form I-526 filed on or after Nov.21, 2019?

A.USCIS will not allow the petitioner to usethe priority date ofapreviouslyapproved Form I-526 petitionfora subsequently filed petition if:

• The investor was already admitted to the United States under section 203(b)(5) of theImmigration and NationalityAct using the priority date of the earlier-approved petition; or

• USCIS revoked thepreviouslyapproved petition forfraud orwillful misrepresentationby the petitioner, orbecause the approval was based on amaterial error.

Q.Howcaninvestorsrequest an earlier priority date?

A.As part of their new Form I-526 submission, investors may provideUSCIS witha statement requesting the earlier priority datealong witha copy of the approval notice (Form I-797) for the previous Form I-526.Investorscanrequest a duplicate copy of theearlierapproval notice usingForm I-824, Application for Action on an Approved Application or Petition.

Minimum Investment Amounts

Q:What are the new minimum investment amountsthat apply toEB-5 investorswho file aForm I-526, Immigrant Petition by Alien Investor,on orafterNov.21,2019?

A:Forinvestments outside of aTargeted 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, theseamountswill automatically adjust for petitions filed on or after each adjustment's effective date, andDHS may update this figure by publication of a technical amendment in the Federal Register.

Q:Howdoesthe new EB-5 final ruleaffectthe minimum investment amount forinvestors who properly filed aForm I-526petitionbeforeNov.21, 2019,but whose petitionswerepending on the effective date of the final rule?

A:Investors who fileda Form I-526 petition before the effective date of the final rule may establish eligibility under theminimum investmentrequirements in effectwhen they filedthe petition.

Q:How does the EB-5 final rule affectthe minimum investment amount forinvestors who filed their Form I-526 petition beforeNov.21, 2019, invested only a partial amount of capital, and areactivelyin the process of investing the remaining amount of capital?

A:These investorsmust meet the requirements in effectwhen they filedthe petition—this includes the requirement to show they can meetthe prior minimum investment amount of either $500,000 or $1millionby havingeitherinvested or beenactively in the process of investing the required amountat the time of filing. Petitioners must show actual commitment of the required amount of capitalat the time of filingbutdonot need to havefully contributedtheircapitalinvestmentto the new commercial enterprisebefore the effective date of the new rule—instead, theymaybeactively in the process of investing the minimum investment amount required under the prior rule.

Q:Howdoesthe EB-5 final rule affect the minimum investment amount for investors who file a new Form I-526 petitionon orafterNov.21, 2019, but who seek to retain a priority date from apreviouslyapproved Form I-526 petition filedbeforeNov.21, 2019?

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

TEA Designations

Q:Howdoes thenew EB-5 ruleaffectthe TEAdeterminationforFormI-526 petitioners who filedbeforeNov.21, 2019?

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

Q:Underthe new EB-5 rule, investors seeking EB-5 classification can demonstrate that their investment is in a highunemploymentTEAby providing evidence that thespecifiedarea in which the new commercial enterprise is principally doing business hashadan 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 areawherethe petitioner has investedor is actively in the process of investingis a high unemployment areaat the applicable time of determination, and such evidence should bereliable and verifiable. USCIS believes that the unemployment data provided to the public by both theCensus Bureau through theAmerican Community Survey (ACS) and theDepartment of Labor’sBureau 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 beconsistent. 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, theyusedifferent 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 TEAunder8 CFR 204.6(i)?

A:An EB-5 petitioner could provide the followingabout the relevant census tractor 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 anyor allof the directly adjacent tracts)

  See Also

  Loan to Fund an EB5 Investment or E2 Investment

• The underlying calculations for establishing theweighted average of theunemployment ratefor the specified area

• The reliable and verifiable data that serves as the source of the unemployment statistics fortheproposed TEA

• Evidence that the data used is reliable and verifiable (that is, petitioners must show that theyused reliable and verifiable methodsto obtain theirunemployment statistics)

Q:To demonstrate that an area qualifies as a high unemployment TEA, petitioners mustshowthat the unemployment rate for the area is atleast150% 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 USCISaccepta state certification of a TEA that was part of an approved Form I-526 petition before Nov.21, 2019,foraseparate Form I-526 petitionfiled 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 tothe new rule.

Removal of Conditions on Permanent Residence

Q:If the principal investor’sderivatives(such as a child or spouse)were not included with theFormI-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 canonly file together if the investor is deceased. Otherwise, each derivativemustfilea separateForm I-829 petition.If the derivative is filing a separate petition from the investor,the derivative should attacha copy of the investor’sForm I-797, Notice of Action, relating tothe investor’sFormI-829.

Q: Does the new rule prohibitUSCISfrom adding aderivativetoa pending Form I-829?

A: No, derivatives may still request to be added to a pending I-829if they pay the biometric fee and are otherwise eligible to be classified as the principal’s derivatives.The new rule standardizesthe process for those derivatives whofile an individual Form I-829 petition andcannot 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 investorsincludeon theirForm 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.