Today, January 13, the Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking (NPRM) that expands on the advanced notice of rules that was released on January 11 regarding enhanced compliance requirements and efficiencies in USCIS processing of related filings.
The NPRM, available here, addresses several important policy issues including Targeted Employment Area (TEA) designation, minimum investment amounts, priority date retention, removal of conditions clarifications, and other miscellaneous changes. In addition to the proposed new regulations, the NPRM includes significant detail on the DHS policy making process, ranging from required analyses on the proposed rules impact on EB-5 stakeholders, to other policy considerations that were not included in the final recommendation (e.g., visa set asides, see pages 35-36).
We encourage you to read the entire NPRM before providing your comments to IIUSA on the NPRM. Below is a summary of the issues that are expected to garner the most attention.
Proposed Changes to TEA Designations
- Eliminate state designation of high unemployment areas as a method of TEA designation.
- Add “cities” and “towns” with a population of 20,000 or more to the existing list of geographic and political subdivisions that can be used to qualify for TEA designation if it meets the 150% unemployment rate requirement. MSAs, counties, and project tracts that qualify under existing rules would continue to qualify under the proposed rule. An example of a new city that would qualify as a practical example of this change is that the city of Detroit is located in Wayne county which would not qualify as a TEA as a county, whereas Detroit as a city would qualify based on unemployment rates today.
- Limit how census tracts can be aggregated to qualify for high unemployment TEA designation as follows: limit the tracts available to aggregation to those that are touching the project tract. See below for an example from page 43.
- A percentage breakdown of distribution impact on NCEs and investors based on FY’13-’15 filings can be found on pages 76-79.
- Use unemployment data from the American Community Survey (ACS) data, which is updated annually.
Minimum Investment Amounts
- Increase TEA investment amount from $500,000 to $1.35 million.
- Increase non-TEA investment amount from $1 million to $1.8 million.
- Maintain 75% differential between amounts with any subsequent increases.
As a reminder, other important issues are covered in this proposed rule that should be considered in your review, such as changes to priority date retention. You can find the official notice posted in the Federal Register, here.
Provide Feedback
The deadline to submit comments on the proposed rule is April 11, 2017 to the Federal Register. IIUSA will be formulating its own comments to submit with input from the Public Policy Committee, Leadership and you, our members. If you would like your comments to be reviewed by IIUSA, please send them, with page citations, by January 31, 2017 to advocacy@iiusa.org.
