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EB-5 Immigrant Investor Program Modernization

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EB-5 Immigrant Investor Program Modernization This document is scheduled to be published in the Federal Register on 07/24/2019 and available online at https://federalregister.gov/d/2019-15000, and on govinfo.gov 9111-97-P DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 204 and 216 [CIS No. 2555-14; DHS Docket No. USCIS-2016-0006] RIN 1615-AC07 EB-5 Immigrant Investor Program Modernization AGENCY: U.S. Citizenship and Immigration Services, DHS. ACTION: Final rule. SUMMARY: This final rule amends Department of Homeland Security (DHS) regulations governing the employment-based, fifth preference (EB-5) immigrant investor classification and associated regional centers to reflect statutory changes and modernize the EB-5 program. In general, under the EB-5 program, individuals are eligible to apply for lawful permanent residence in the United States if they make the necessary investment in a commercial enterprise in the United States and create or, in certain circumstances, preserve 10 full-time jobs for qualified United States workers. This rule provides priority date retention to certain EB-5 investors, increases the required minimum investment amounts, reforms targeted employment area designations, and clarifies USCIS procedures for the removal of conditions on permanent residence. DHS is issuing this rule to codify existing policies and change certain aspects of the EB-5 program in need of reform. DATES: This final rule is effective November 21, 2019. 1 FOR FURTHER INFORMATION CONTACT: Edie C. Pearson, Policy Branch Chief, Immigrant Investor Program Office, U.S. Citizenship and Immigration Services, Department of Homeland Security, 131 M Street NE., 3rd Floor, Washington, DC 20529; Telephone (202) 357-9350. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary A. Purpose of the Regulatory Action B. Legal Authority C. Summary of the Final Rule Provisions 1. Priority Date Retention 2. Increases to the Investment Amounts 3. TEA Designations 4. Removal of Conditions 5. Miscellaneous Changes D. Summary of Costs and Benefits E. Effective Date F. Implementation II. Background A. The EB-5 Program B. The Regional Center Program C. EB-5 Immigrant Visa Process D. Final Rule III. Response to Public Comments on the Proposed Rule A. Need for Rulemaking and Regulatory Process B. Priority Date Retention 1. Proposed Standards for Retaining a Priority Date 2. Other Comments on Priority Date Retention C. Increases to the Investment Amounts 1. Increase to the Standard Minimum Investment Amount 2. Use of CPI-U 2 3. Adjustments Every Five Years Tied to CPI-U 4. Implementation of the Increase in Investment Amount 5. Increase to the TEA Minimum Investment Amount 6. Investment Level Differential Between Standard Investment Amount and TEA Investment Amount D. Revisions to the Targeted Employment Area (TEA) Designation Process 1. Standards Applicable to the Designation of a TEA 2. Proposal to Eliminate State Designation of TEAs 4. Other Comments on Proposal to Change to Special Designation of High Unemployment Area 5. Other Comments on the TEA Designation Process E. Technical Changes 1. Separate Filings for Derivatives 2. Equity Holders F. Other Comments on the Rule 1. Processing Times 2. Visa Backlogs 3. Timing of the Rule 4. Material Change 5. Comments Outside the Scope of this Rulemaking G. Public Comments and Responses on Statutory and Regulatory Requirements 1. Data, Estimates, and Assumptions Used (Executive Orders 12866 and 13563) 2. Costs (Executive Orders 12866 and 13563) 3. Other Impacts (Executive Orders 12866 and 13563) 4. Other Comments on the Regulatory Impact Analysis (Executive Orders 12866 and 13563) 5. Comment on Unfunded Mandates Reform Act (UMRA) IV. Statutory and Regulatory Requirements A. Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review), and 13771 (Reducing Regulation and Controlling Regulatory Costs) B. Small Business Regulatory Enforcement Fairness Act of 1996 C. Regulatory Flexibility Act 1. Industry Classifications/NAICS Codes to Classify Regional Centers 2. Industry Classifications/ NAICS Codes to Classify NCEs 3 3. Sources of Revenue for RCs and NCEs 4. Other Comments on the RFA D. Unfunded Mandates Reform Act of 1995 E. Executive Order 13132 F. Executive Order 12988 G. National Environmental Policy Act H. Paperwork Reduction Act I. Executive Summary A. Purpose of the Regulatory Action DHS is updating its regulations governing EB-5 immigrant investors and regional centers to reflect statutory changes and codify existing policies. This final rule also changes areas of the EB-5 program in need of reform. B. Legal Authority The Secretary of Homeland Security’s authority for this final rule can be found in various provisions of the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., as well as the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Public Law 102-395, 106 Stat. 1828; the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107-273, 116 Stat. 1758; and the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq. General authority for issuing this final rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to administer and enforce the immigration and nationality laws, including by establishing such regulations as the Secretary deems necessary to carry out her authority; section 101(b)(1)(F) of the HSA, 6 U.S.C. 111(b)(1)(F), which establishes that a primary mission 4 of DHS is to ensure that the overall economic security of the United States is not diminished by the Department’s efforts, activities, and programs aimed at securing the homeland; and section 102 of the HSA, 6 U.S.C. 112, which vests all of the functions of DHS in the Secretary. The aforementioned authorities for this final rule include: Section 203(b)(5) of the INA, 8 U.S.C. 1153(b)(5), which makes visas available to immigrants investing in new commercial enterprises in the United States that will benefit the U.S. economy and create full-time employment for not fewer than 10 United States workers. Section 204(a)(1)(H) of the INA, 8 U.S.C. 1154(a)(1)(H), which requires individuals to file petitions with DHS when seeking classification under section 203(b)(5). Section 216A of the INA, 8 U.S.C. 1186b, which places conditions on permanent residence obtained under section 203(b)(5) and authorizes the Secretary to remove such conditions for immigrant investors who have met the applicable investment requirements, sustained such investment, and otherwise conformed to the requirements of sections 203(b)(5) and 216A. Section 610 of Public Law 102-395, 8 U.S.C. 1153 note, as amended, which created the Immigrant Investor Pilot Program (the “Regional Center Program”), authorizing the designation of regional centers for the promotion of economic growth, and which authorizes the Secretary to set aside visas authorized under section 203(b)(5) of the INA for individuals who invest in regional centers. C. Summary of the Final Rule Provisions 5 DHS carefully considered the public comments received and this final rule adopts, with appropriate changes, the regulatory text proposed in the Notice of Proposed Rulemaking (NPRM) published in the Federal Register on January 13, 2017. See EB-5 Immigrant Investor Program Modernization; Proposed Rule, 82 FR 4738. This final rule also relies on all of the justifications articulated in the NPRM, except as reflected below. This rule makes the following changes as compared to the NPRM: The rule clarifies that the priority date of a petition for classification as an investor is the date the petition is properly filed. The rule clarifies that a petitioner with multiple approved immigrant petitions for classification as an investor is entitled to the earliest qualifying priority date; The rule retains the 50 percent minimum investment differential between a targeted employment area (TEA) and a non-TEA instead of changing the differential to 25 percent as proposed, thereby increasing the minimum investment amount in a TEA from $500,000 to $900,000 (rather than $1.35 million, as DHS initially proposed); The rule makes a technical correction to the inflation adjustment formula for the standard minimum investment amount and the high employment area investment amount, such that future inflation adjustments will be based on the initial investment amount set by Congress in 1990, rather than on the most recent inflation adjustment. Thus, for instance, the next inflation adjustment will be based on the initial minimum investment amount of $1,000,000 in 1990, rather than this rule’s minimum investment amount of $1,800,000, which is a rounded figure. This change better implements the intent of the proposed rule; it ensures 6 that future inflation adjustments more accurately track inflation since 1990, rather than being based on rounded figures. The rule modifies the original proposal that any city or town with a population of 20,000 or more may qualify as a TEA, to provide that only cities and towns with a population of 20,000 or more outside of metropolitan statistical areas (MSAs) may qualify as a TEA. The rule modifies the application of the rule, such that amendments or supplements to any offering necessary to maintain compliance with applicable securities laws based upon the changes in this rulemaking will not independently result in denial or revocation of a petition, provided the petition meets certain criteria. The rule also makes other minor non-substantive and clarifying changes. This final rule makes the following major revisions to the EB-5 program regulations: 1. Priority Date Retention The final rule authorizes certain EB-5 petitioners to retain the priority date1 of an approved EB-5 immigrant petition for use in connection with any subsequent EB-5 immigrant petition.2 See final 8 CFR 204.6(d).
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