January 11, 2017

After months of waiting, U.S. Citizenship & Immigration Services (USCIS) finally released the full text of the proposed EB-5 regulations (NPRM) on Jan. 12, 2017.

The key details of the proposed rule would significantly change the EB-5 regional center program:

1. USCIS proposes to increase the minimum investment amount for non-Targeted Employment Areas (TEAs) to $1.8 million, due at the time that the EB-5 petition is filed.
2. USCIS seeks to increase the investment amount for TEAs to $1.35 million, which is 75% of the standard cost of $1.8 million.
3. Under the NPRM, USCIS will centralize TEA determinations in the Department of Homeland Security (DHS) at the federal level, and prohibit TEA determinations by the states.  TEA determination in urban areas remains exclusively focused on whether the census tract(s) in question have a weighted average unemployment rate that is 150% of the national average unemployment rate. No information is provided in the NPRM regarding the procedures, timelines and costs for the TEA determination by the DHS.
4. USCIS seeks to modify the TEA system by adopting a “bullseye” approach using census tracts as its building blocks.  First, if the census tract or tracts in which the new commercial enterprise is principally doing business has or have a weighted average of unemployment rate that is 150% of the national average unemployment rate, then the territory qualifies as a TEA.  Second, if the ‘bullseye’ census tract(s) in which the new commercial enterprise is principally doing business PLUS ANY CENSUS TRACT OR TRACTS DIRECTLY ADJACENT to the bullseye census tract(s) has or have a weighted average of unemployment rate that is 150% of the national average unemployment rate,  then the territory qualifies as a TEA.   In this second option, only census tracts that are immediately adjacent the census tracts in which the new commercial enterprise is principally doing business can be counted.
5. One helpful new concept in the NPRM is the possibility of priority date retention.  Under the NPRM, an investor’s priority date based on an EB-5 visa petition can be retained by the investor when filing a new EB-5 visa petition.
6. The NPRM provides that comments from the public are due by 4/11/2017.

I.A. Donoso & Associates LLC will be submitting comments to the USCIS opposing the cost increase set out in the NPRM, and challenging USCIS to provide specific details of any proposal to centralize TEA determination in the DHS.

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