Friday, July 9, 2021 - The U.S. Citizenship and Immigration Services (USCIS) has provided guidance to stakeholders on its application of the judicial order issued 2 weeks ago which voids the EB-5 Immigrant Investor Program Modernization Final Rule that became effective November 21, 2019. USCIS verifies the “November 21, 2019 rules are no longer in effect.” and that it will honor the original rules which qualify a $500,000 investment in a Targeted Employment Area (TEA). In addition, the original rules require projects to obtain a letter from the state government designating a geographic or political subdivision as a high unemployment area.
Petitions filed prior to November 21, 2019 and after June 22, 2021 will be adjudicated under the original rules. While the original rules remain valid now, the question remains, how long will they continue to be valid? In a statement USCIS says, “The Department of Justice is reviewing the court’s ruling and is considering all judicial and administrative options for preserving important changes made by the vacated regulation.” This statement underscores USCIS’ desire to reinstate the modernization rules in the future, while providing certainty to those who have already taken advantage or who are seeking to take advantage of the short-term opportunity to qualify under the original $500,000 rules.
Please find the official Alert below.
Alert: On June 22, 2021, the U.S. District Court for the Northern District of California, in Behring Regional Center LLC v. Wolf, 20-cv-09263-JSC, vacated the EB-5 Immigrant Investor Program Modernization Final Rule (PDF). While USCIS considers this decision, we will apply the EB-5 regulations that were in effect before the rule was finalized on Nov. 21, 2019, including:
- No priority date retention based on an approved Form I-526;
- The required standard minimum investment amount of $1 million and the minimum investment amount for investment in a Targeted Employment Area (TEA) of $500,000;
- Permitting state designations of high unemployment TEAs; and
- Prior USCIS procedures for the removal of conditions on permanent residence.
In other words, we are applying the regulations in effect before Nov. 21, 2019, on this website and in the USCIS Policy Manual, Volume 6, Part G, Investors. In addition, we again will accept the April 15, 2019, version of Form I-526, Immigrant Petition by Alien Entrepreneur, because the Nov. 21, 2019, version of the form reflects updates from the now-vacated rule.