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February 24 2017

The Future of EB-5

The more a visa is used, the more rules are applied to restrict its use.

We saw this with the H-1B visa, which is used primarily for technology workers. In the 1990s, Intel, Apple, Microsoft and many others were staffed with foreign engineers, many with H-1B visas. As the number of H-1Bs rose, Congress put a cap on how many are available (85,000 today), and later added fees and rules for posting notices about jobs. Recently, there are proposals for employers to prove a worker shortage in order to sponsor an H-1B visa, as well as pay H-1B workers extremely high salaries.

Now that EB-5 is becoming more popular, we see more restrictions being proposed. In 2012, USCIS issued new rules limiting the use of jobs created by a project’s tenants. USCIS later issued new policy restrictions on borrowed funds used by investors for EB-5 visa capital. Currently, the government and many in Congress want the EB-5 investment amount increased to $1 million or $1,350,000 in a high unemployment area, or $1.8 million in other areas. The way Targeted Employment Areas are calculated is also under attack.

Now is a good time for investors to file EB-5 petitions, as the EB-5 visa requirements will only become more restrictive over time. The EB-5 Regional Center statute set to expire on April 28th (extension is anticipated) and the recent USCIS proposed rules to raise the investment amount are driving new EB-5 investors to commit to projects.

New Department of Homeland Security Rules Impacts Some EB-5 Cases

Most EB-5 immigrants apply for immigrant visas via the American Consul in their homeland. Those who are in the U.S., such as foreign students will, after their I-526 is approved, file for adjustment of status on form I-485. In the past, about 90 days after filing the I-485, the applicant would receive a work permit and a travel permit called “advance parole.”

New DHS rules appear to require an “emergency” for issuance of the parole travel permit, as was the case two decades ago. This change will only impact about 10% of the EB-5 investors, i.e. those who apply here, not at the Consul in their homeland.

This new rule applies to all adjustment applicants, many of whom are Silicon Valley-sponsored engineers and spouses of U.S. citizens. Hopefully Silicon Valley executives will convince DHS that the emergency “parole” concept from the time of sailing ships is more than just outdated, and the new restriction on parole travel permits will be withdrawn. In the computer age, many need to travel often for work, to attend conferences, and to see family.


We will soon be hearing a lot about “deference” to the government. Supreme Court Justice nominee Neil Gorsuch, who I am sure will be asked about this in his Senate confirmation hearing in March, has written that he does not think the precedent Chevron decision should stand. Chevron says that courts should give “deference” to a government agency’s interpretation of a statute it administers, unless such interpretation is irrational. This will be important for EB-5 investors and RCs as the rules tighten and people challenge USCIS decisions in court.