EB-5 Immigrant Investor Program

On June 22, 2021, the U.S. District Court for the Northern District of California, in Behring Regional Center LLC v. Wolf, 20-cv-09263-JSC, vacated the EB-5 Immigrant Investor Program Modernization Final Rule (PDF).

While USCIS considers this decision, we will apply the EB-5 regulations that were in effect before the rule was finalized on Nov. 21, 2019.

Under the vacated rule published by the U.S. Department of Homeland Security, several changes to the EB-5 Immigrant Investor Program that went into effect Nov. 21, 2019 are no longer in effect.

The new rule modernizes the EB-5 program by:

• Providing priority date retention to certain EB-5 investors;
• Increasing the required minimum investment amounts to account for inflation;
• Reforming certain targeted employment area (TEA) designations;
• Clarifying USCIS procedures for the removal of conditions on permanent residence; and
• Making other technical and conforming revisions.

What You Need to Know:

Priority date retention

• Certain immigrant investors will keep the priority date of a previously approved EB-5 petition when they file a new petition.

Increased minimum investments

• The standard minimum investment amount has increased to $1.8 million (from $1 million) to account for inflation.
• The minimum investment in a TEA has increased to $900,000 (from $500,000) to account for inflation.
• Future adjustments will also be tied to inflation (per the Consumer Price Index for All Urban Consumers, or CPI-U) and occur every 5 years.

Targeted employment area (TEA) designations

• We will now directly review and determine the designation of high-unemployment TEAs; we will no longer defer to TEA designations made by state and local governments.
• Specially designated high-unemployment TEAs will now consist of a combination of census tracts that include the tract or contiguous tracts in which the new commercial enterprise is principally doing business, including any or all directly adjacent tracts.
• Provided they have experienced an average unemployment rate of at least 150% of the national average unemployment rate, TEAs may now include cities and towns with a population of 20,000 or more outside of metropolitan statistical areas.
• These changes will help direct investment to areas most in need and increase the consistency of how high-unemployment areas are defined in the program.

Clarified procedures for the removal of conditions on permanent residence

• The new rule specifies when derivative family members (for example, a spouse and children whose immigration status comes from the status of a primary benefit petitioner) who are lawful permanent residents must independently file to remove conditions on their permanent residence;
• The new rule includes flexibility in interview locations; and
• The new rule updates the regulations to reflect the current process for issuing Green Cards.

On Nov. 30, 2018, in the case of Zhang v. USCIS, No. 15-cv-995, the U.S. District Court for the District of Columbia certified a class that includes anybody who has a Form I-526, Immigrant Petition by Alien Investor, that was or will be denied on the sole basis of investing loan proceeds that were not secured by their own assets. The court vacated these denials and ordered USCIS to reconsider the petitions.

In May 2019, we sent letters to all petitioners whose petitions we denied and to petitioners who withdrew their I-526 petitions. We wanted to make sure to notify all potential class members. If you received this notification and do not believe that you are a potential class member, please disregard the letter; you do not need to take any further action.

On Jan. 28, 2019, we appealed the court’s decision. On Oct. 27, 2020, the U.S. Court of Appeals for the D.C. Circuit affirmed the district court’s decision. With this decision, the court certified the class, and we are reopening and adjudicating class member petitions consistent with the court’s decision.

AUTHORITIES: The information USCIS is requesting that you provide in your email to USCIS, and the associated evidence, is collected under the Immigration and Nationality Act sections 103 and 203(b)(5) and Title 8 of the Code of Federal Regulations parts 103 and 204.6.

PURPOSE: The primary purpose for providing the requested information in your email is to determine your eligibility as a class member and, if so, to make a determination whether to reconsider your Form I-526 petition.

DISCLOSURE: The information you provide is voluntary. However, failure to provide the requested information, including your Social Security number (if applicable), and any requested evidence, may delay a final decision or result in USCIS being unable to identify you as a potential class member.

ROUTINE USES: DHS may share the information you provide in your email and any additional requested evidence with other Federal, state, local, and foreign government agencies and authorized organizations. DHS follows approved routine uses described in the associated published system of records notices [DHS/USCIS/ICE/CBP-001 Alien File and National File Tracking System of Records, DHS/USCIS-007 Benefits Information System, and DHS/USCIS-018 Immigration Biometric and Background] and the published privacy impact assessments [DHS/USCIS/PIA-016(a) Computer Linked Application Information System and Associated Systems], which you can find at www.dhs.gov/privacy. DHS may also share this information, as appropriate, for law enforcement purposes or in the interest of national security.