Chapter 1 - Purpose and Background

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 in this chapter.

ALERT: Statutory authorization related to the EB-5 Immigrant Investor Regional Center Program expired at midnight on June 30, 2021. This lapse in authorization does not affect EB-5 petitions filed by investors who are not seeking a visa under the Regional Center Program. Due to the lapse in authorization related to the Regional Center Program, USCIS will reject the following forms received on or after July 1, 2021:

  • Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program, except when the application type indicates that it is an amendment to the regional center’s name, organizational structure, ownership, or administration; and
  • Form I-526, Immigrant Petition by Alien Investor, when it indicates that the petitioner’s investment is associated with an approved regional center.

In general, we will not act on any pending petition or application of these form types that is dependent on the lapsed statutory authority until further notice.

A. Purpose

The Immigration and Nationality Act (INA) makes visas available to qualified immigrant investors who will contribute to the economic growth of the United States by investing in U.S. businesses and creating jobs for U.S. workers.[1] Congress created this employment-based fifth preference immigrant visa category (EB-5) to benefit the U.S. economy by providing an incentive for foreign capital investment that creates or preserves U.S. jobs.

The INA authorizes approximately 10,000 visas each fiscal year for immigrant investors (along with their spouses and unmarried children under the age of 21) who have invested or are actively in the process of investing in a new commercial enterprise and satisfy the applicable job creation requirements. Three thousand of the visas are set aside for immigrants, and their eligible family members, who invest in a new commercial enterprise within a USCIS-designated regional center. Regional centers are organized in the United States for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment.[2]

The INA establishes a threshold investment amount of $1,000,000 U.S. dollars per investor and provides the ability to raise the amount by regulation. On July 24, 2019, DHS published the EB-5 Immigrant Investor Program Modernization rule, which raised the investment amount for petitions filed on or after November 21, 2019.[3] Beginning October 1, 2024, the investment amount automatically adjusts every 5 years for petitions filed on or after each adjustment’s effective date to an amount determined by a prescribed method and calculation.[4] DHS may also update the investment amount by publishing a technical amendment in the Federal Register.

To encourage investment in new enterprises located in areas that would most benefit from employment creation, the INA also sets aside at least 3,000 of the approximately 10,000 EB-5 visas annually for qualified immigrants who invest in new commercial enterprises that will create employment in targeted employment areas (TEA), which includes rural areas and areas with high unemployment. The minimum amount for investing in a TEA was previously set at 50 percent of the standard minimum investment amount, $500,000 U.S. dollars per investor, but increased to $900,000 for petitions filed on or after November 21, 2019.[5] As with the standard minimum investment amount, beginning on October 1, 2024, and every 5 years thereafter, the TEA amount automatically adjusts for petitions filed on or after each adjustment’s effective date, to be equal to 50 percent of the standard minimum investment amount described above.[6]

The minimum investment amounts by filing date and investment location are:

Petition Filing Date

Minimum Investment Amount[7]

TEA Investment Amount[8]

High Employment Area Investment Amount[9]

Before November 21, 2019

$1,000,000

$500,000

$1,000,000

On or After November 21, 2019[10]

$1,800,000

$900,000

$1,800,000

Upon adjustment of status or admission to the United States, immigrant investors and their derivative family members receive conditional permanent resident status for a 2-year period. Ultimately, if the applicable requirements have been satisfied, USCIS removes the conditions and the immigrants become lawful permanent residents (LPRs) of the United States without conditions.

B. Background

1. EB-5 Category Beginnings

In 1990, Congress created the EB-5 immigrant visa category.[11] The legislation envisioned LPR status, initially for a 2-year conditional period, for immigrant investors who established,[12] invested (or were actively in the process of investing) in, and engaged in the management of job-creating or job-preserving for-profit enterprises.[13] Congress placed no restriction on the type of the business if the immigrant investor invested the required capital and directly created at least 10 jobs for U.S. workers.

2. Creation of the Regional Center Program

In 1992, Congress expanded the allowable measure of job creation for the EB-5 category by launching the Immigrant Investor Pilot Program (referred to in this guidance as the Regional Center Program).[14] Congress designed this program to determine the viability of pooling investments in designated regional centers.[15] Currently, the jurisdiction of a regional center is based on the regional center proposal submitted to and approved by USCIS. 

The Regional Center Program is different from the direct job creation (stand-alone) model because it allows for the use of reasonable economic or statistical methodologies to demonstrate job creation. Reasonable methodologies are used, for example, to credit indirect (including induced) jobs to immigrant investors. Indirect jobs are jobs held outside the enterprise that receives immigrant investor capital. 

3. Program Extensions

Congress initially approved the Regional Center Program as a trial pilot program, set to expire after 5 years. Congress has extended the program several times.[16]

Evolution of EB-5 Program

Act

Statutory Provisions

Sections 121(a)-(b) of the Immigration Act of 1990[17]

  • Congress creates the employment-based fifth preference immigrant visa category (EB-5). 

  • EB-5 provides a path to permanent resident status, initially on a 2-year conditional basis, to qualified immigrant investors who contribute to U.S. economic growth by investing in domestic businesses and creating employment. 

  • Intends for immigrant investors to establish, invest in, and engage in the management of job-creating commercial enterprises.

Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993[18]

  • Congress creates an Immigrant Investor Pilot Program (Regional Center Program) to have a number of the available EB-5 visas set aside each fiscal year for immigrant investors (and eligible family members) who invest in a commercial enterprise associated with a designated Regional Center. 

  • Regional centers designated for the promotion of economic growth. 

  • The Regional Center Program allows foreign investors to claim credit for direct and indirect job creation.[19]

Sections 11035-37 of the 21st Century Department of Justice Appropriations Authorization Act[20]

  • Includes a specific reference to limited partnerships as commercial enterprises and eliminates the requirement that immigrant investors prove they have established a commercial enterprise themselves. Investors need only show they have invested or are actively in the process of investing in a commercial enterprise, among other requirements. 

  • Defines full-time employment as employment in a position that requires at least 35 hours of service per week at any time, regardless of who fills the position.

  • Allows regional center proposals to be based on general but economically and statistically sound predictions submitted with the proposal concerning the kinds of enterprises that will receive capital from immigrant investors, the jobs that will be created directly or indirectly as a result of the investments, and other positive economic effects of the investments.

Section 1 of Pub. L. 112-176 (PDF)[21]

  • Eliminates the word pilot from the name of the Regional Center Program.

C. Legal Authorities

  • INA 203(b)(5)8 CFR 204.6 – Employment creation immigrants

  • INA 216A8 CFR 216.6 – Conditional permanent resident status for certain alien entrepreneurs, spouses, and children

  • 8 CFR 216.3 – Termination of conditional permanent resident status

  • Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993[22]

Footnotes


[^ 1] See INA 203(b)(5).

[^ 2] See Section 610(a) of the Judiciary Appropriations Act of 1993, Pub. L. 102-395 (PDF, 83.2 KB), 106 Stat. 1828, 1874 (October 6, 1992) as amended by Section 11037 of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273 (PDF), 116 Stat. 1758, 1847 (November 2, 2002).

[^ 3] See 84 FR 35750 (PDF) (July 24, 2019),

[^ 4] See 84 FR 35750, 35766-67 (PDF) (July 24, 2019). See 8 CFR 204.6(f)(1).

[^ 5] See INA 203(b)(5)(B)-(C). See 8 CFR 204.6(e)-(f)(2).

[^ 6] See 8 CFR 204.6(f)(2).

[^ 7] See 8 CFR 204.6(f)(1). See 8 CFR 204.6(f)(1) (PDF) (as in effect before November 21, 2019).

[^ 8] See 8 CFR 204.6(f)(2). See 8 CFR 204.6(f)(2) (PDF) (as in effect before November 21, 2019).

[^ 9] See 8 CFR 204.6(f)(3). See 8 CFR 204.6(f)(3) (PDF) (as in effect before November 21, 2019).

[^ 10] These amounts automatically adjust on October 1, 2024. USCIS will update this Part accordingly.

[^ 11] See Section 121(a) of the Immigration Act of 1990 (IMMACT90), Pub. L. 101-649 (PDF), 104 Stat. 4978, 4987 (November 29, 1990).

[^ 12] In 2002, Congress eliminated the requirement that an immigrant investor establish the new commercial enterprise. See Section 11036 of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273 (PDF), 116 Stat. 1758, 1846 (November 2, 2002).

[^ 13] See Sections 121(a)-(b)(1) of IMMACT90, Pub. L. 101-649 (PDF), 104 Stat. 4978, 4987 (November 29, 1990).

[^ 14] See Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, Pub. L. 102-395 (PDF), 106 Stat. 1828, 1874 (October 6, 1992).

[^ 15] See S. Rep. 102-331 at 118 (July 23, 1992).

[^ 16] For information on the current expiration date, see the USCIS website

[^ 17] See Pub. L. 101-649 (PDF), 104 Stat. 4978, 4987 (November 29, 1990).

[^ 18] See Pub. L. 102-395 (PDF), 106 Stat. 1828, 1874 (October 6, 1992).

[^ 19] For a discussion on indirect jobs, see Chapter 2, Eligibility Requirements, Section D, Creation of Jobs [6 USCIS-PM G.2(D)]. 

[^ 20] See Pub. L. 107-273 (PDF), 116 Stat. 1758, 1846 (November 2, 2002).

[^ 21] See 126 Stat. 1325, 1325 (September 28, 2012).

[^ 22] See Pub. L. 102-395 (PDF, 83.2 KB), 106 Stat. 1828, 1874 (October 6, 1992), as amended. 

Current as of July 26, 2021