The United States Department of Homeland Security (“DHS”) has proposed new regulations to govern the EB-5 Pilot Program for foreign investors seeking to obtain permanent residency in the United States. The new proposed regulations (the “Proposed Regulations”) were published on 13 January 2017 pursuant to a formal Notice of Proposed Rulemaking Making.
There are significant changes to the existing law under the Proposed Regulations. Perhaps the most important for most foreign investors seeking permanent residency is an increase in the minimum investment amount for a qualifying investment in a regional center. Under the Proposed Regulations, the minimum qualifying investment would increase from US$500,000.00 to US$1,350,000.00 for a regional center operating within a Targeted Employment Area (“TEA”). And, for an investment in a regional center operating outside of a TEA, the minimum investment would increase from US$1,000,000.00 to US$1,800,000.00.
Under the Proposed Regulations, the proposed new qualifying investment amount would not apply retroactively to I-526 Petitions presently pending before the United States Citizenship & Immigration Service (“USCIS”). Notwithstanding the foregoing, it should be observed that there have been attempts within the Congress to retroactively apply any changes or modifications in the existing laws and regulations governing the EB-5 program to I-526 Petitions presently pending before the USCIS. However, to date, the Congress has not approved any retroactive application of changes or modifications in the existing laws and regulations governing the EB-5 program.
Under the applicable administrative procedures, the Proposed Regulations will be subject to public comment for a period of three months. Legislative commentators anticipate that DHS and USCIS likely will publish final regulations during the summer of 2017. Despite having bipartisan support in the past, it is unknown whether the administration of President Trump, and/or the new Congress, will further modify the Proposed Regulations after the period for public comment expires.
Further, and in addition to the new Proposed Regulations, House Bill H.R. 5992, known as the “American Job Creation and Investment Promotion Reform Act of 2016”, sponsored by House Judiciary Committee Chairman Bob Goodlatte (R-Virginia), and its companion Senate Bill of the same name introduced by Senators Patrick Leahy (D-Vermont) and Chuck Grassley (R-Iowa), remain pending. Both the House Bill and the Senate Bill have enjoyed bipartisan support in the past. It is unknown whether the administration of President Trump, and/or the new Congress, will seek to amend the House Bill and the Senate Bill, or whether they will be enacted into law in 2017.
Lastly, pursuant to the recent Continuing Resolution funding legislation approved by the President and the Congress in December 2016, the existing EB-5 program was extended without any changes through 28 April 2017.
In view of the foregoing, all foreign persons interested in seeking permanent residency in the United States under the existing EB-5 program should immediately analyze their current situation to determine if they are a suitable candidate under the existing EB-5 program. In the event you would like to discuss your current situation, please feel free to contact Walroth-Sadurni Law for a private confidential consult. Our contact information can be found at www.walsadlaw.com.