EB-5 Investor Visas Minimum Dollar Amount Keeps Changing

June 22, 2021 The new regulations increasing the minimum investment amount for people seeking permanent residence through the EB-5 visa program to $1 million has been struck down by a federal court, but could eventually be brought back.

** LEGAL UPDATE **

U.S. Citizenship and Immigration Services (USCIS) published new rules on July 24, 2019 for the EB-5 investor visa program. Up until then, the minimum investment amount was $1 million. Investments in "targeted employment areas" (areas with high unemployment rates) had to be at least $500,000.

You could invest either in your own enterprise or in an approved "Regional Center," which pools $500,000 investments from multiple investors for large-scale investment projects. In either case, your investment needed to directly or indirectly create ten full-time jobs for local workers.

The new rules went into effect November 21, 2019. We'll describe them below; but first, there was a hiccup in the U.S. government's plans in June of 2021, when a federal judge held that the raised amounts were not properly signed off upon and therefore never came into effect.

So, as of mid-2021, the $500,000/$1 million limits will come back into force and remain in effect until the Department of Homeland Security (DHS) re-promulgates the revised rules from 2019 or files a successful court appeal, as many experts believe is likely. When exactly one of those things might happen cannot be predicted.

Now, back to what the 2019 rules did (and might again do someday).

Their intention was to raise the minimum investment amounts to $1.8 million in general and $900,000 in targeted employment areas (TEAs) and shift responsibility for identifying what constitutes a targeted employment area from states to USCIS.

The old rule afforded state governments some flexibility in designating TEAs to attract EB-5 investments. The new rule would provide less flexibility and define TEAs as rural areas or areas that have unemployment of at last 150% of the national average. "Rural" in turn refers to areas outside metropolitan statistical areas or beyond the outer boundary of any city or town of 20,000 or more residents.

Another change made by the 2019 revised rules would require dependent family members (spouses and children under age 21) to submit separate petitions to remove the conditions on their initial two-year residency if the principal investor did not include the dependents in his or her petition to remove the conditions on residency.

Finally, the revised rules would allow some EB-5 investors to retain their "priority dates" from previously approved EB-5 petitions. This would benefit investors who need to submit a subsequent EB-5 petition. Rather than starting over in the green card queue, they could retain their earlier filing date. With backlogs developing in the EB-5 category lately, this could prove helpful to possibly avoiding delays in obtaining permanent residency.

Investors hoping to get in under the wire will before the investment levels are possibly raised once again will need to file their I-526 petition promptly, and even then there's no guarantee of success. See an immigration attorney for help.

For the regulations concerning this visa, see 8 C.F.R 204.6(e).

Effective Date: June 22, 2021