For over two years, we’ve extensively covered USCIS’ proposed EB-5 Modernization Rule. On Friday, February 22, USCIS formally completed its revisions to the proposed rule via the notice and comment process, sending its draft of the Final Rule to the Office of Management and Budget (OMB). There is no published timetable for OMB’s assessment and publishing of the Final Rule into the Federal Register.

As proposed, the EB-5 Modernization Rule would raise minimum investment amounts to at least US $1.35 million, sharply curtail which locations could qualify as a “Targeted Employment Area”, centralize the TEA designation process, and make a variety of other technical edits. We opposed significant portions of the rule. We also heavily criticized USCIS’ mistaken facts when comparing justifying its proposals to Canadian programs. Virtually all of the EB-5 industry’s stakeholders opposed the draft rule as written.

The time frame for substantive change to EB-5 remains uncertain, as do the ever-present prospects of preemptive legislation. The exact substance of changes is also unclear at this time; although it is virtually certain that minimum investment amounts will rise sharply. There is also likely to be a delay between the publication of the new regulations and when they will go into effect.