The EB-5 Immigrant Investor Program Modernization regulation went into effect on November 21, 2019.
This regulation made significant changes to the EB-5 industry. These changes include:
1. Significant increases in minimum investment levels:
Minimum investment levels for EB-5 projects located in Target Employment Areas (“TEAs”) increased to $900,000, while the investment levels for EB-5 projects not located in TEAs increased to $1,800,000.
2. States can no longer designate TEAs:
Instead of allowing individual states to conduct such designations, only U.S. Citizenship and Immigration Services (“USCIS”) can now designate TEAs. In their Form I-526 petitions, individual investors must now provide USCIS with statistics and other evidence that proves why a project’s location should be designated as being in a TEA.
3. Limitations on which areas are considered TEAs:
TEAs can now only be an area of land or a census tract that directly touches the census tract that the EB-5 project is located in for tract aggregation purposes. Census block groups can no longer be used, which drastically reduces the number of possible TEAs throughout the United States.
Proving TEA Designations
The burden is now on the investor to prove that an area should qualify as a TEA. However, the new regulations are not clear on what information the investor needs to gather and present to the DHS. It’s also unclear how investors will know that their request for a TEA designation has been approved. This caused significant concern for projects and investors who will have to wait two or more years for a project’s first I-526 petitions to be adjudicated in order for a project and its investors to know whether or not USCIS will actually grant TEA designation to the project.
Unemployment data from either the U.S. Census Bureau’s American Community Survey (“ACS”) or the Bureau of Labor Statistics (“BLS”) can be used as evidence for TEA designation. However, BLS data only provides information at the city or town level. ACS provides more in-depth information about communities, but it does not provide information as quickly as BLS.
Beyond ACS and BLS, it is unclear what DHS will permit as reliable data. The new regulation does explicitly state that it is not limiting information to BLS and ACS, however.
States previously used “census-share methodology,” which combined ACS and BLS information, so it is certainly understandable that DHS would permit investors to use similar data to prove that an area has high unemployment.
One of the main differences between the ACS-only and the “census-share” method is that census-share develops “trend” information by looking at ACS information over a five-year average and corresponding BLS data.
Using ACS-only does not include this additional analysis, which creates a different data set entirely. Many argue that the ACS-only approach provides outdated information because it does not include this “extra” trend analysis.
It is unclear how USCIS will analyze the ACS-only or BLS-only information when designating TEA areas, particularly as it appears that this more limited data may not be as effective as what states were doing previously.
Get Help from EB-5 Attorneys
As an EB-5 investor or project, you need to present the most accurate and comprehensive information available under the new regulation. David Hirson & Partners, LLP’s EB-5 attorneys can help potential EB-5 investors and projects with this information-gathering and presentation. Call today for more information or to schedule a consultation.