The Latest EB-5 Updates And Changes

In the recent weeks some proposed EB-5 updates and changes to policies have passed while others are still in talks.

The EB-5 updates and changes to policies that passed have a much lower impact on EB-5 investors than the proposed policies that are still in limbo.

The three EB-5 policies that were recently updated include:

1. 1. USCIS states that the tenant occupancy model can’t be used when counting the 10 jobs because the jobs were not created by the investment, the tenants merely moved into the location from another location
2. USCIS confirms that as long as 10 jobs were created when the project was started it is sufficient even if the jobs no longer exist at the time of USCIS’s decision
3. Investors can continue to maintain their immigration status while USCIS processes their applications for green cards

There were also three proposed EB-5 changes that have not seen the light of day yet. These regulations were  originally proposed by the Obama Administration and recently called for this month by Congressmen Grassley and Goodlatte: 

1. An increase to the EB-5 minimum investment amount
2. Stricter guidelines for determining targeted employment areas (TEA)
3. Additional anti-fraud program measures

The regulations proposed above can be implemented by USCIS, but a fourth change, as described below, would need to be passed by Congress.

A fourth change to the EB-5 Program that is less often brought up, but may be the biggest issue of them all is the 10,000 EB-5 visa cap. It won’t matter if the minimum investment amount increases if foreign nationals do not want to apply because the visa backlog means they would have to wait in line for 15 years to get their green card. 

Other countries like the U.K. and Canada have faster paths to lawful permanent residency that would more likely appeal to these investors if the EB-5 visa cap is not addressed at fixed. Currently a maximum of 700 from each country can obtain visas without going over the cap, but because this number includes dependents, it’s really more like only 200-300 qualified investors from each country can obtain a visa. Mainland China and recently Vietnam have already met their visa limit. India is close behind and are expected to meet their limit by mid-2019. 

Countries on the threshold of EB-5 visa retrogression would benefit from applying to the EB-5 Program immediately not only to avoid the longer line, but to avoid the proposed increase in the minimum investment amount. 

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