Since February 22, 2019, the EB-5 Immigrant Investor Program Modernization Regulation (“EB-5 Modernization Regulation”) is under review at the Office of Management and Budget (OMB). The OMB Review is the final step in the agency rulemaking process before publication of a final rule. Once it passes the OMB review, the final rule will be published in the Federal Register with a future effective date.

While the OMB review process may still take from a couple of weeks to a couple months, the industry and investors should know and be prepared that we may have a new set of EB-5 regulations soon this time.

What We Know:

The EB-5 Modernization Regulation is the final version of USCIS Agency Notice of Proposed Rulemaking (“NPRM”) for RIN: 1615-AC07, published by USCIS in January 2017. A few highlights from the January 2017 NPRM are:

• Increased minimum EB-5 investment amount to $1,350,000 in a TEA or $1,800,000.
• A more centralized designation process of TEA and expectedly, a narrower pool of projects qualified for TEA.
• Priority date retention rule for investors, subject to restrictions.
• Spouse and children may be able to file a Form I-829 petition even if the Principal Investor cannot or will not file a Form I-829 petition.

What We DO NOT Know:

Unfortunately, what is in the Final Rules submitted to OMB is what we DO NOT know. It’s been two years since public comments and concerns were voiced on the NPRM from January 2017. While we do know what’s in the January 2017 NPRM, we do not know what public comments, if any, were accepted and enacted into the EB-5 Modernization Regulation currently in front of the OMB.

Although the exact changes to the EB-5 regulations remain unclear to the public at this point, for those who are seriously interested in making an EB-5 investment soon and filing an EB-5 petition, it is recommended actions should be taken sooner rather than later.

Foster will continue to monitor changes in the EB-5 Investor Program and will provide updates as appropriate via Foster Immigration Updates© and on the firm’s website at www.fosterglobal.com.