USCIS publishes EB-5 modernization Q&A with new TEA guidance

  • Written by Posted on March 18, 2020 | Updated on July 6, 2020 | 5 min read

USCIS has published online a question-and-answer document addressing some changes to the EB-5 program including priority date retention, Targeted Employment Areas, and removal of conditions on permanent residence. EB-5 expert Suzanne Lazicki points out that some of this TEA guidance has not been provided up till now.

Priority Date retention

Who can retain a previously approved priority date?

EB5 Green Card investors who filed an I-526 petition on or after November 21, 2019, may keep the priority date from a previously approved application, subject to conditions.

Who cannot retain a previously approved priority date?

  • investors already in the U.S. under section 203(b)(5) of the Immigration and Nationality Act using the priority date from a previously approved petition
  • investors with previously approved petitions revoked by USCIS because approval was based on either investor fraud or material error

How can an investor request to retain a previously approved priority date?

Issue a request to USCIS along with a copy of the approval notice (Form I-797) for the previously approved I-526.

Investment amount increases

If I filed before November 21, 2019, can I still invest the $500,000 (TEA) or $900,000 (non-TEA) amount if my petition is still pending?

Yes, you may invest the amount required at the time of filing.

I filed before November 21, 2019, but only invested only a portion of the investment — what happens?

EB5 green card investors must show the commitment of the required amount of EB5 investment capital, but do not have to have invested the full amount if they are actively in the process of doing so.

TEA designation

What TEA rules must I follow if I filed before November 21, 2019?

You must be eligible according to the TEA requirements at the time of filing for your Green Card by investment.

What data sources will USCIS accept for high-unemployment TEA’s?

USCIS requires evidence to be both reliable and verifiable. Data from the Census Bureau through the American Community Survey (ACS) and the Department of Labor’s Bureau of Labor Statistics (BLS) both meet those requirements. Whatever source is used, there should be consistency. For example, if ACS data was used for TEA, ACS data should be used for the national unemployment rate.

What evidence is needed to prove the New Commercial Enterprise (NCE) is principally doing business in a TEA?

The following could be submitted: location of the NCE, or Job Creating Enterprise (if applicable), a map with the census tracts being used, the underlying calculations for the weighted average of unemployment rate, reliable and verifiable data.

What decimal place should an unemployment rate be round to?

There should be a consistency with both the TEA and the unemployment rate used for comparison.

Is a state certificate of TEA status from before the Modernization Rule acceptable if the material facts have stayed the same?

No.

Removal of conditions for permanent residence

If the principal applicants family members were not on the initial Form I-829, can they file on a single Form I-829?

They can only file on a single application if the principal investor is deceased; otherwise, each family member must file a separate Form I-829.

Can we add a family member to a pending Form I-829?

Yes, if they pay the biometric fee and are eligible under derivative requirements.

Can the principal applicant add on their I-829 the following: a child who turned 21 or married during the conditional permanent residence, a former spouse who divorced the principal applicant?

Good EB5 news, as the answer is yes.

Read the USCIS release