On Jan. 13, 2017, the Department of Homeland Security (DHS) published proposed rules entitled, “EB-5 Immigrant Investor Program Modernization.” The proposed regulations include priority date retention for subsequently filed EB-5 petitions, increased minimum investment amounts to $1.8 million and $1.35 million in Targeted Employment Areas (TEAs), expansion of TEA designation requirements, and other technical changes. The period for public comment regarding the rules lasts 90 days and ends on April 11, 2017.
Priority Date Retention
The first major change DHS has proposed is to allow petitioners to retain the priority date of approved EB-5 petitions for any subsequently filed EB-5 petition. This change will benefit the many EB-5 investors whose initial petitions were approved but later revoked through no fault of their own, for instance if the Regional Center terminated or an investment project becomes no longer desirable.
The provision would not apply in two circumstances. First, priority date retention would not be available when revocation of the original petition’s approval was based on fraud, willful misrepresentation of a material fact, or a determination that DHS approved the petition based on a material error. Second, priority date retention would not be available when investor uses the priority date to obtain conditional LPR status based upon the approved petition.
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