Chapter 1 - Purpose and Background
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]
|
Act |
Statutory Provisions |
|---|---|
|
Sections 121(a)-(b) of the Immigration Act of 1990 [17] |
|
|
Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993 [18] |
|
|
Sections 11035-37 of the 21st Century Department of Justice Appropriations Authorization Act [20] |
|
|
Section 1 of Pub. L. 112-176 (PDF) [21] |
|
C. Legal Authorities
-
INA 203(b)(5); 8 CFR 204.6 – Employment creation immigrants
-
INA 216A; 8 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.