In February 2023, Portugal proposed a “Mais Habitação” or “More Housing” bill that would, in part, suspend the entire Golden Visa immigrant investor program in an effort to address housing availability in the country, as discussed in an earlier blog post. Since that writing, there have been significant updates.

Legislative Progress

In July 2023, Portugal’s Assembly of the Republic approved a version of the bill that ended the Golden Visa program’s real estate-based investment options. This marked a substantial restructuring, mitigating the possibility of a complete program shutdown. The restructured bill was then sent to Portuguese President Marcelo Rebelo.

On Aug. 21, 2023, President Rebelo vetoed the bill, deeming it inefficient and sending it back to the Assembly for further deliberation. Nevertheless, the Assembly proceeded to pass the bill without changes in September 2023. Unless the president requests the Constitutional Court to revise the bill – which is improbable since his veto was based on economic reasons rather than legality concerns – the new law will take effect the day after its publication in the Official Gazette, expected to occur within the next 60 days.

Anticipated Changes

Under the new law, no new residence visa applications would be considered for real estate investments. The law also would eliminate the option of making a capital transfer of at least €1 million into a Portuguese bank account as a basis for receiving the Golden Visa. Currently, those who have previously received authorization under this program will be able to renew the authorization.

Continuation of Other Investment Options

The Golden Visa program’s other investment options will continue, including:

  • Investment in non-real estate collective investment structures, such as funds.
  • Investment in preexisting companies, fostering job creation and contributing to their share capital.
  • Investment donations to support artistic or scientific endeavors.

On May 8, 2023, Florida Gov. Ron DeSantis signed into law Senate Bill (SB) 264 relating to interests of foreign countries. The new law, effective July 1, 2023, generally restricts the issuance of state-level government contracts or economic development incentives to, or real property ownership by certain individuals and entities associated with foreign “countries of concern.” According to the law, the foreign countries of concern include the People’s Republic of China, the Russian Federation, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, the Republic of Cuba, the Venezuelan regime of Nicolás Maduro, and the Syrian Arab Republic. 

Continue reading the full GT Alert.

Business immigration visa quotas have long presented a major hurdle for employers and employees. There is no logic to the quota systems that Congress has in place, and quotas are not accurately connected with economic reality.

It is important for the US economy that Congress takes the necessary steps to update the employment-based visa system and reform the quota issue. Without these changes, employers will continue to struggle to fill jobs in many industries, such as nursing, and other highly skilled positions.

Continue reading the full article, published by Bloomberg Law Jan. 18, 2023.

Based on a recent hearing in a lawsuit challenging certain EB-5 regulations, it appears the regulations may be struck down due to the illegal appointment of Department of Homeland Security (DHS) Secretaries by the Trump Administration.[1] Enacted on Nov. 21, 2019, the regulations at issue had increased investment amounts from $500,000 to $900,000 for investments in a targeted employment area (TEA), restricted the ability for investments to be considered within a TEA, and made other changes to the EB-5 visa category. This is the second lawsuit to challenge these EB-5 regulations, the first of which was filed in November 2019.[2] The government in that earlier lawsuit survived a preliminary injunction request on a different basis, one related to the economic harm of the new regulations, as opposed to whether or not DHS had a lawfully appointed secretary.

During the hearing, the U.S. Magistrate Judge reviewing the lawsuit focused on whether the DHS secretaries involved in promulgating the regulations had the proper authority. The regulations were proposed under acting DHS Secretary Kevin McAleenan, and the final rule was issued by Acting DHS Secretary Chad Wolf. Multiple federal courts and the Government Accountability Office (GAO) have found that McAleenan and Wolf were improperly appointed. Because neither McAleenan nor Wolf had the property authority to issue the regulations, the regulations are invalid.

According to the magistrate judge, if she rules in favor of the plaintiffs challenging the regulations, there would need to be a remedy agreed to by the plaintiffs and defendants on winding down the regulations. Further briefing has been ordered by the judge, and a hearing date has been scheduled for May 6, however, the judge may issue a final ruling based on the briefs alone. The judge requested the parties to brief remedies if the regulations were invalidated, a strong indicator of the outcome.

If the regulations are struck down, there is likely no negative effect on I-526 petitions filed by EB-5 visa applicants after Nov. 21, 2019, as the new regulations were inclusive of the old regulations. In other words, all I-526 petitions that qualify under the new regulations should still qualify based on the old regulations.


[1] Behring Regional Center LLC v. Wolf et al., No. 3:20-cv-09263 (N.D. Cal.).

[2] Florida EB5 Investments, LLC v. Wolf et al., No. 1:2019cv03573 (D.D.C.).

The Biden administration has revoked Presidential Proclamation 10014 of April 22, 2020 -Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak (PP 10014).

PP 10014 was intended to stop the issuance of immigrant visas at embassies and consulates abroad in order to protect the U.S. labor market; however, it contained many notable exemptions. Exempt from PP 10014’s restrictions included immigrants with valid visas, those seeking to enter the United States in certain medical professions, EB-5 visa holders, immediate relatives of U.S. citizens, members of the U.S. armed forces and their immediate relatives, and those whose entry was deemed to be in the national interest, among others.

It is not clear whether PP 10014 has actually protected the U.S. labor market, given that by law the majority of employment-based immigrants must satisfy a labor market test or have shown such a test is unwarranted (i.e., extraordinary ability, national interest waivers or multinational managers). As the Biden administration noted in its presidential proclamation, PP 10014 appeared mostly to harm the United States by preventing certain family members of U.S. citizens and lawful permanent residents from entering the country. In that manner, PP 10014 served to function as a ban on family-based immigration and diversity visas. The U.S. immigration system was constructed by Congress to favor family-based immigration, and PP 10014 overturned that careful construction, leading some to believe that the Trump administration was using the pandemic as a pretext to push through an anti-immigrant agenda. Diversity visa winners were forced to sue in federal court for the right to utilize their lawfully obtained benefit to immigrate and have recently seen their visa expiration dates extended at the U.S. district court level.

While this will be a welcome step by many, it may not satisfy immigration advocates’ expectations of a full rollback of the Trump administration’s pandemic-related immigration restrictions. The Biden administration has not revoked Presidential Proclamation 10052 of June 22, 2020 – Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak (PP 10052), which has restricted the issuance of H-1B, H-2B, J and L visas from abroad. PP 10052 has also been subject to litigation and was enjoined at the U.S. district court level; however, that ruling was restricted to the plaintiff organizations and their members. This effectively limited the injunction to members of the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, TechNet, and Intrax, Inc.

In addition to PP 10052, the Biden administration has also continued the Trump administration’s suspension of the entry of certain travelers who spent any part of the 14-days prior to entry in the Schengen Area, United Kingdom, Republic of Ireland and Brazil. These restrictions overlap with the CDC requirement that all travelers to the U.S. obtain a viral test within three days of flight departure, leading some to find that the suspension of entry should be reconsidered.

Lastly, the final challenge to restoring the U.S. immigration system will be the restoration of routine visa services at embassies and consulates worldwide. Since the pandemic began, many embassies and consulates have completely shut down or severely restricted visa processing, both for immigrant and nonimmigrant visas. While these restrictions are largely pandemic-related and are in place with good reason, they have the effect of stymieing lawful immigration, as most foreigners who require a visa to enter the United States cannot obtain one, and therefore, cannot enter the country. This shadow ban on immigration affects all applicants, including family-based and employment-based immigrant and nonimmigrant visa holders. It is also the most inconsistent, as visa applicants are at the mercy of the operations of the consulate or embassy with jurisdiction over their foreign country of residence. Some embassies, like London, have severely restricted visa processing, while others, like Panama, are processing certain immigrant and nonimmigrant categories. In another example, the Amsterdam Embassy recently switched to only providing emergency nonimmigrant visa services despite the in-country case average hovering near its rate from October, a time when the embassy had expanded services. Visa applicants generally cannot shop around, as most embassies and consulates restrict processing at their location to residents of the jurisdiction they cover and, if they could apply at a different embassy or consulate, would have to pay a new visa fee.

While it is generally believed that the Biden administration will ultimately also revoke PP 10052 and resume routine consular operations worldwide (with appropriate pandemic-related measures), those actions cannot come soon enough for immigrants caught in limbo, many of whom are separated from loved ones or unable to start work.

On the first day of his presidency, Joe Biden is sending to Congress his marker for an overhaul of the U.S. Immigration Laws. See link to summary here.

The Biden administration proposes broad changes that will impact immigration law across the board and will also have a significant impact on business immigration if ultimately passed by Congress.

The U.S. Citizenship Act will:

  • Provide a pathway to citizenship for many immigrants who have a destabilized status in the United States, including DACA recipients, essential workers, and TPS holders
  • Provide relief to employment and family immigrant visa backlogs
  • Address the causes of illegal migration

Some of the key details of the legislation that will be important in the business immigration context include:

Earned Permanent residence status and Path to Citizenship

  • Create a path to earn permanent residence and citizenship for certain undocumented individuals. Individuals would apply for legal status or green card lawful permanent resident status for five years and then for more permanent green card status after three years. They would need to pass background checks and pay taxes. Dreamers, TPS holders, and agricultural immigrant workers who meet specific requirements are eligible for green cards immediately under the legislation. Applicants must be physically present in the United States on or before Jan. 1, 2021.
  • Reducing Family Visa Backlogs. The proposal would clear backlogs, recapture unused visas, eliminating lengthy wait times.
  • The proposal would allow immigrants with approved family-sponsorship petitions to join family in the United States in a temporary status while they wait for green cards to become available.
  • Employment-Based immigrant backlogs. This proposal would clear employment-based visa backlogs, recapture unused visas, and eliminate per-country visa caps. The proposal would exempt graduates of U.S. universities with advanced STEM degrees from immigrant visa caps.
  • The proposal creates a pilot program to stimulate regional economic development, by giving DHS the authority to adjust immigrant visa numbers based on economic conditions

This bold legislative proposal is the new administration’s wish list for immigration reform. Congress will now need to take the initiative to craft an immigration bill that can pass both the Senate and the House. Congress has taken up the Comprehensive Immigration Reform challenge over the last two decades. The most recent piece of legislation was S. 744, passed during the Obama administration in 2013. The legislation was passed by the Senate but ultimately was never taken up the House of Representatives.

The complex issue of non-immigrant visas such as H-1B, L-1, H-2B, and any new visa category for the future flow of workers has not been addressed by the Biden proposal and will need to be part of the debate.

The Executive Order, “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” signed on April 23 by President Trump is narrower in scope than his prior statements promising a shutdown of immigration to the United States. The Executive Order bans the issuance of immigrant visas to those physically outside the United States, with certain exceptions.

Regarding the employment-based fifth preference category (EB-5), the Executive Order exempts EB-5 visas when processed abroad. Accordingly, individuals already in the EB-5 visa process, contemplating filing for an EB-5 visa, or already present in the United States on green card or immigrant visa pursuant to an EB-5 petition, will not be affected by the Executive Order. Below are some key questions and answers:

If I want to make an investment in the U.S. and take advantage of the EB-5 visa program, am I affected by the Executive Order?

No, you are not affected.

My I-526 Petition has been approved. Can I file and obtain an immigrant visa abroad?

Yes. The Executive Order specifically exempts those individuals entering the United States with an EB-5 visa. Consulates are not prohibited from issuing immigrant visas pursuant to the EB-5 program. However, EB-5 applicants should note that U.S. Consulates and Embassies remain closed for in-person interview appointments and may not open for another 60 days. Individuals who have EB-5 visas already but have yet to enter the United States are also not affected.

Likewise, those EB-5 investors in the United States who are eligible to file for adjustment of status can still file Form I-485 with USCIS.

I am a conditional green card holder; can I still file my I-829 Petition?

Yes. The Executive Order does not affect current green card holders, an investor’s ability to file an I-829 Petition with USCIS, and the ability of USCIS to grant approval of your I-829 Petition.

Will USCIS continue processing my I-526 Petition or I-829 Petition?

Yes. USCIS processing of I-526 Petitions and I-829 Petitions are not affected by this Executive Order.

Could I experience any delays in my EB-5 visa process as a result of the Executive Order?

No. There is nothing in the Executive Order that would impose a delay on processing an I-526 Petition, I-829 Petition, I-485 or Immigrant Visa application based on an approved I-526 Petition.

Today, President Trump announced that his administration has nominated Poland as a Visa Waiver Program (VWP) participating country. Entry into the U.S. Visa Waiver Program allows citizens of participating countries to travel to the United States for tourism, business, or in transit for up to 90 days without having to obtain a visa.

President Trump stated: “…This is an important step in continuing to increase economic, security, cultural, and people-to-people connections between our two nations. Now that Poland has been nominated, the Department of Homeland Security will take necessary action, as soon as possible, to assess Poland’s entry into the program. If Poland is designated as a Visa Waiver Program country, its nationals would be authorized for visa-free travel to the United States for business and tourism. The bilateral relationship between the United States and Poland has never been stronger, and this would serve as a remarkable accomplishment for both countries.” Continue Reading Trump Administration Nominates Poland for U.S. Visa Waiver Program

After years of delay the Obama-era EB-5 immigration regulations were published on July 24, 2019. You can find a copy of the regulations at this link. You can also find a summary of them here. The regulations only apply to those who file their I-526 Petitions on or after Nov. 21, 2019. Without further ado, below are some winners and losers of the new regulations.

Those who will lose out with the new regulations

States. States are one of the biggest losers, as DHS has decided to formally remove any state input from the determination as what qualifies as a targeted employment area (TEA). Given that the EB-5 visa category is fundamentally an economic development program, the removal of state input neuters any localized input on the what, who, and where of these investments. This position is contrary to the original implementing regulations, wherein the predecessor agency to DHS had found that “…the Service believes that the enterprise of assembling and evaluating the data necessary to select targeted areas, and particularly the enterprise of defining the boundaries of such areas, should not be conducted exclusively at the Federal level without providing some opportunity for participation from state or local government.”1 DHS no longer feels this way.

Less wealthy investors. The final regulation increases the minimum investment for rural areas and targeted employment areas to $900,000. Investments not within those areas must be $1,800,000. Regardless of the rationale for the increase, the increase will shrink the pool of prospective investors who have sufficient means to make such an investment.

Conditional permanent residents in failed projects. While there is a positive side to priority date retention, which will be discussed below, DHS’ decision to draw a line as to who is eligible for priority date retention clearly puts conditional permanent residents in failed projects into the loser category. Under the new regulation, an investor can retain the priority date from an approved I-526 Petition as long as (a) USCIS did not revoke the earlier approval based on the investor’s fraud or willful misrepresentation, (b) USCIS did not revoke the earlier approval based on a material error, and (c) the investor has not been admitted to the U.S. as a conditional permanent resident. Thus, if an investor has, pursuant to an approved I-526 Petition, entered the United States as a conditional permanent resident and previously used the I-526 to become a conditional permanent resident, and circumstances outside the investor’s control make it such that the investor will not be able to remove the conditions on residence (i.e., not enough jobs are created), the investor must file a new I-526 Petition with a new priority date in order to continue seeking permanent residency under the EB-5 visa category if he or she cannot otherwise meet the eligibility requirements under the policy outlined on material change in the USCIS Policy Manual.

DHS explained that it declined to include investors who have been admitted as conditional permanent residents because it believes a priority date cannot generally be re-used in other employment or family-based visa categories; the goal of this regulation is to protect against the effects of retrogression, and there are other protections for investors who are conditional permanent residents to remove the conditions on residence. These rationales fail to hold up under scrutiny.

While it is accurate that a priority date cannot generally be re-used in other employment or family-based visa categories, the other visa categories are simply not analogous or comparable. There is no other employment or family-based visa category subject to visa availability (retrogression) that requires conditional permanent residency before a final grant of permanent residency. The only analogous category is spouses of U.S. citizens, who receive conditional permanent residency for a two-year period, and who are not subject to visa availability because spouses of U.S. citizens are classified as immediate relatives (a visa number is always available). Thus, DHS was unable to find a parallel in other employment or family-based visa categories because no such parallel exists.

The effects of retrogression will also be felt acutely by investors who are conditional permanent residents. For instance, a conditional permanent resident born in India may have been able to enter the United States prior to the recent retrogression for Indian-born investors. If that investor is required to refile a new I-526 Petition and process with a new priority date, that investor will likely be forced to depart the United States and wait abroad for eight or more years until a visa is available based on the new priority date.

Lastly, while it is true that the statute, regulations, and policies provide other avenues for investors in conditional permanent residency status to remove conditions, none of those avenues protect investors from a total project failure where money is spent and not enough jobs are created, or where a project fails to move forward. In those circumstances, conditional permanent residents would likely have to self-deport, unless they were eligible for another immigrant or nonimmigrant visa category, and file a new I-526 Petition at the back of any existing retrogression queue if they want to continue to pursue permanent residency under the EB-5 visa category.

DHS. DHS has not done itself any favors with the publication of these regulations. As already discussed above, DHS’ rationale for not permitting a conditional permanent resident to retain their earliest priority date fails under scrutiny. DHS’ rationale in a few other areas also fails to hold up under scrutiny.

While there is a logical argument for an increase in the minimum investment, DHS’ response to comments regarding competitiveness of the EB-5 visa category only discussed one competitor investment visa program, which had a smaller minimum investment than EB-5: the Quebec Program. Instead, DHS focused on Australia, the U.K., and New Zealand. This analysis conveniently omits Portugal and Spain, which grant residency permits for EUR 500,000; Malta, which grants citizenship (Malta is an EU-member country) for approximately EUR 900,000; and Cyprus, which also provides citizenship for approximately EUR 2,500,000. Cyprus and Malta will also grant permanent residency for a lower amount. These are the programs currently competing directly with the United States, and they provide for residency in western European countries with comparable prices to the U.S., and in some instances, for a little bit more money the promise of immediate citizenship.

This analysis also does not include a review of the Caribbean countries that will grant citizenship within a matter of months for less than $500,000. These countries include Grenada, which has an E-2 treaty with the United States. With the increase in the minimum investment to $900,000 under these regulations, it will be far more attractive to obtain a Grenadian passport, establish a U.S. business that qualifies for an E-2, and enter and live in the United States on an E-2 visa.

DHS also takes great pains to establish that it cannot calculate whether or not there will be less applications due to these regulations, and in particular, because of the increase in the minimum investment. This belies common sense, and can only be supported by cherry picking other visa programs around the world which cost more and ignoring those that cost less. Indeed, DHS makes a similar mistake when it references a 10-year forecast of I-526 Petition receipts that – notwithstanding the fact I-526 Petition receipts have fallen by approximately half since 2015 – predicts a 3.3% increase over the next three fiscal years.2 It’s simply not credible that I-526 Petitions receipts, which have fallen in half for three straight fiscal years, would somehow increase, even by a small amount, after an increase in the minimum investment amount.

Lastly, setting aside the policy goals of redirecting investment to the actual area of high unemployment, it seems clear from DHS’ own analysis that there will be detrimental economic impact due to the TEA-related changes. When evaluating the economic impacts of the TEA-related changes, DHS found that 54% of all investments would be affected. Despite this, DHS concludes that the TEA-related changes will “…provide benefits in that additional areas may qualify as a TEA based on high unemployment, potentially offering investors more opportunities to invest in a TEA at the reduced investment amount…” It is unclear how additional areas would qualify as a TEA under a more restrictive definition.

Those who will win with the new regulations

Rural Projects. The clear winners are projects in rural areas. Constraining the ability of urban areas to qualify for the lower investment threshold seems likely to drive a measurable number of investors to projects located in rural areas.

Backlogged investors in stalled/failed projects. As noted above, the flipside of the priority date retention changes is that investors with approved I-526 Petitions, who have not yet become conditional permanent residents due to retrogression or any other reasoning, can file a new I-526 Petition and maintain their old priority date. This is a welcome respite for investors waiting outside the United States for a visa and dealing with a failed or staller project, or a situation where the regional center involved was terminated. As noted above, priority date retention is not available in cases involving fraud, willful misrepresentation of a material fact by the investor, or when DHS determines that it approved the I-526 Petition based on a material error.

Dependents in I-829 Petitions. Currently, dependents may be either included in a principal applicant’s I-829 Petition or added at a later date by paying the biometrics fee. However, if the principal applicant failed or refused to file an I-829 Petition, the dependent would not be eligible to remove the conditions on their residence. Under the new regulations, if a principal applicant refuses to file or fails to file an I-829 Petition, each derivative applicant may file their own I-829 Petition. This could be beneficial to divorced spouses who no longer have contact with their spouses who were the principal applicant. The practical effect of this change is a bit limited, as DHS found an average of approximately 24 cases per year involving these circumstances.

DHS has also clarified via regulation that a child who becomes married during conditional permanent residency and a child who reaches the age of 21 during conditional permanent residency is eligible to file an I-829 Petition, either with the principal applicant or on their own. DHS also clarified that where a principal applicant is deceased, the spouse and child may file separate I-829 Petitions or may file one I-829 Petition together.

Economists. Economists, who were already important, just got a lot more important. Under the prior regulations and the deference by DHS to state-based TEA determinations, it was possible for a layman to determine whether or not a project was located in a TEA. The new regulation states that USCIS may designate as an area of high unemployment a census tract or contiguous census tracts that are directly adjacent, and that have a weighted average based on a labor force employment measure of 150% of the national average unemployment rate. The use of a weighted average is a change from existing regulation and would require a mathematical calculation of unemployment of all applicable census tracts and the labor force of all applicable census tracts. While this information is publicly available through the Bureau of Labor Statistics and the Census Bureau, it seems extremely burdensome for an average lay person to make such a calculation on their own.

Further complicating this issue is that under the new regulations only USCIS can make a determination of whether a project is in a TEA. The new regulations do not establish a separate application or process for obtaining TEA designation from USCIS prior to filing an I-526 Petition, and USCIS will not issue separate TEA designation letters for areas of high unemployment. DHS will make the determination as part of the existing adjudication process. If a regional center prefers to seek a TEA determination in advance of an I-526 Petition adjudication, it can file an exemplar I-924 application and if approved, the approval, including the TEA determination, will receive deference in I-526 Petitions associated with that exemplar. However, this deference is likely short-lived, if applicable at all, because the average processing time for an exemplar I-924 application is longer than the validity of the unemployment data, which is generally valid for one year. Thus, economists will be extremely important to ensuring a project is accurately located in a TEA.

1 See 56 FR 60897-01

2 In fiscal year 2015, USCIS received 14,373 EB-5 petitions; in fiscal year 2016, 14,147; in fiscal year 2017, 12,165; and in fiscal year 2018, 6,424. See U.S. Citizenship and Immigration Services, Number of Form I-526, Immigrant Petition by Alien Entrepreneur, by Fiscal Year, Quarter, and Case Status 2008-2018, available here.

After more than two and a half years, Obama-era EB-5 immigration regulations are set to be published on July 24, 2019, with an effective date 120 days after publication or Nov. 21, 2019. See EB-5 Immigrant Investor Program Modernization.

These regulations have been opposed by many industry participants, as evidenced in a letter to Congressional Leadership in May 2019.

For years all involved have called for significant reforms and modernization to the program including:

  • Integrity Measures to Bolster National Security and Fraud Deterrence
  • Long-term Reauthorization
  • Revised Targeted Employment Area (TEA) Definitions
  • Revised Investment Amounts
  • New Set-Asides for Rural and Urban Distressed Areas
  • Visa Backlog Relief

Legislators on both sides of the aisle have specifically called for integrity measures to ensure against fraud. The new regulations do not do what Congress continues to seek to do legislatively, because the agency does not have the requisite authority.

The  EB-5 rule proposed by USCIS in January 2017 proposed two critical things:

  1. Drastically increased investment amounts to $1.35 million and $1.8 million from the current amounts of $500,000 and $1 million.
  2. Changed the definition of “Urban TEAs”, the areas that – along with “Rural” – qualify for the lower investment amount.

The new proposed Urban TEAs would be in the shape of a “donut” – that is, a single census tract that is the “hole” of the donut, surrounded by a ring of other adjacent census tracts. This “donut” approach to TEAs has no precedent in any other statute or regulation that directs capital to economically-distressed areas

The final rule would do the following:

  • The new investment amounts would be $900,000 at the lower level and $1.8 million at the top level.
  • The reported rationale: These are the levels calculated if indexed to inflation from 1992, when the current levels of $500,000 and $1 million first took effect upon the program’s creation.

The new TEA definitions differ from the “donut” approach as initially proposed, by rule “tweaks” to clarify that any city or town with a population of 20,000 or more outside of a metropolitan statistical area may qualify as a TEA and substituting “contiguous” to “directly adjacent” when describing census tracts that can be added for purposes of defining a TEA (under distress criteria). This is different from the proposed rule that allowed any city or town with a population of 20,000 or more to qualify as a TEA, regardless of being in or out of a MSA. In addition, these regulations remove any mention of “geographic and political subdivisions” for special designations.

The reported rationale: DHS believes this will ensure consistency in TEA adjudications that adhere closely to Congressional intent. DHS will make these designations, which eliminates the current practice of a state being able to designate certain areas as high unemployment areas.

The EB-5 Regional Center program expires on Sept. 30, 2019. Congress and stakeholders are working on a reauthorization with much needed policy and legislative changes. If such an extension occurs, the rule published today may never take effect. Only Congress can enact all of the reforms necessary to modernize EB-5. The EB-5 regulations do not address:

  • the fraud and national security measures that we all agree are necessary.
  • the rural and urban distressed visa set aside
  • the Opportunity Zone designations in urban areas.

As stated above, implementation of the new rule is set to occur 120 days from publication, or Nov. 21, 2019.

The regulations do make changes along the lines we reported in past blogs. See A Detailed Look at the Proposed EB-5 Regulations, OMB Completes Review of Obama-Era EB-5 Regulations, and Summary: Notice of Proposed Rule for the EB-5 Immigrant Investor Program.

Please consult your GT attorney with specific questions. We will be posting additional materials as available and will be posting a comprehensive summary of all the changes shortly.