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On July 24, 2019, the Department of Homeland Security amended regulations governing the EB-5 Immigrant Investor Visa Program.  These changes were made to reflect statutory changes and modernize the EB-5 program.  Currently, you can obtain a permanent visa if you invest $500k in a business which creates 10 jobs in a high-unemployment area; or invest $1mil anywhere in the U.S., and create 10 jobs. 

            The changes most significant to Indian investors are: increased minimum investment amounts and elimination of the $500k investment level, priority date retention to certain EB-5 investors, and higher standards for “targeted employment area” designations.  However, the new rule goes into effect November 21, 2019, so time is of the essence if you wish to invest at the lower levels.

a.  Increased Investment Level.  Investor levels were increased to “reflect the present-day dollar value of the investment amounts” established in 1990.  The Department adjusted the amounts “for inflation from 1990 to 2015,” as measured by the Consumer Price Index.  The new amounts will be adjusted every 5 years into the future based on the CPI.  The current $1 mil level will be increased to $1.8 mil, and the minimum level for investments in targeted employment areas will increase from $500k to $900k.

b.  Priority Date retention:  Certain EB-5 petitioners will retain their priority date of when their EB-5 petition is first approved.  This is helpful to petitioners because if the business they are investing in collapses or is no longer valid to support the needed job creation, another investment can be substituted in its place, while the petitioner still has their priority date in their visa category.  For example, visas for petitioners from mainland-China are over-subscribed, as a result, petitions filed from 4+ years ago are now being processed.   A lot can happen with a business over 4 years, and priority date retention allows a petitioner to maintain their place in line and find another business to invest in.  Good news for the Indian investor, visa petitions are current for investors born in India.  That means you can get a conditional visa after submitting your form I-526 petition and it is approved, without waiting in a back-logged line as is the case for mainland-Chinese petitioners.  

c.  TEA Designations:  The new rule eliminates each state’s ability to designate certain areas as being “high unemployment,” and instead assigns that task to the Department.  Also, the new rule will make it harder for businesses to show they are part of a high unemployment census tract.  To date, states like California have made TEA Designations readily obtainable.  It is anticipated this change will reduce the amount of businesses which can qualify as a TEA.  For the Indian investor, this will likely mean less businesses that can qualify as a TEA and offer investor visas at the new minimum of $900k.

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