Recent Proposed Regulations and Legislation for the EB-5 Program

Recent Proposed Regulations and Legislation for the EB-5 Program

March 13, 2019

Recent Proposed Regulations

Recently, USCIS has sent new regulations related to the EB-5 Program to the Office of Management Budget ("OMB").  Thereafter, the proposed regulations would then be sent to the General Accounting Office ("GAO") and then will be subject to administrative approval.  It is difficult to predict what the net result of the regulations will be, including the increase in the investment amounts for both non-TEA and TEA designated projects, and the potential for phasing, if any, of the investment amount increases.  The regulations will also address the priority dates for the I 829 petitions, address the ability of dependents to file I 829s, and the determination of TEA designations.  It is difficult to predict if the regulations will ultimately be adopted, the final provisions contained therein, and the effective date of same.

Recent Proposed Legislation

Congresswoman Lofgren, on behalf of herself and various members of the House of Representatives has introduced the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) (the "Act").

The Proposed Act amends INA ยง202(a)(2) to eliminate the per-country limitation on employment-based immigrants and changes the per-country limitation on family-based immigrants from seven percent to fifteen percent.

The amendments made by the Act shall take effect as if enacted on September 30, 2019, and shall apply to fiscal years ("FY") beginning with FY 2020.

Transitional Rules for Employment-Based Immigrants:

  • FY 2020:  15 percent of EB-2, EB-3, and EB-5 visas shall be allotted to individuals who are natives of countries other than the two countries with the largest aggregate numbers of natives who are beneficiaries of approved petitions for immigrant status under the above-listed immigrant visa categories.
  • FY 2021:  10 percent of EB-2, EB-3, and EB-5 visas shall be allotted to individuals who are natives of countries other than the two countries with the largest aggregate numbers of natives who are beneficiaries of approved petitions for immigrant status under the above-listed immigrant visa categories.
  • FY 2022:  10 percent of EB-2, EB-3, and EB-5 visas shall be allotted to individuals who are natives of countries other than the two countries with the largest aggregate numbers of natives who are beneficiaries of approved petitions for immigrant status under the above-listed visa categories.
  • The number of visas reserved in FY 2020, 2021, and 2022, as described above, that are allocated to any single foreign state or dependent area in the appropriate fiscal year may not exceed 25 percent (in the case of a single country) or 2 percent (in the case of a dependent area) of the total number of visas available.
  • For FY 2020, 2021, 2022, no more than 85 percent of the EB-2, EB-3, and EB-5 visas made available under each visa category shall be allotted to immigrants who are natives of any single foreign country.

Transition Rule for Currently Approved Beneficiaries

Immigrant visas shall be allocated such that no individual who is the beneficiary of an employment-based immigrant visa petition that was approved prior to the date of enactment of this Act shall receive a visa later than such individual would otherwise have received a visa had this Act not been enacted.

Net Result of the Act

Removing the per-country cap would make the EB-5 visa immediately unavailable for all existing EB-5 investors from the countries that are not currently experiencing the visa retrogression issue - including Brazil, South Korea, and the rest of the world (except for China and Vietnam).  Hypothetically, in the first five years of the elimination of the per-country cap, it is forecasted by Invest in the USA ("IIUSA") that over 96 percent of the annual EB-5 visa allocation would be used by the existing Chinese EB-5 visa applicants and their qualified family members while the remaining 4 percent would be consumed by the existing EB-5 visa applicants and their family derivatives from Vietnam.

Without the per-country cap, all existing EB-5 investors from all countries other than China would face a longer wait to receive conditional permanent residency. Existing EB-5 investors from Vietnam and their family members would need to wait three to five years longer for their EB-5 visas; while existing Indian EB-5 investors and their qualifying family derivatives would face an increase of six (6) years or longer for their EB-5 visa waiting time.

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