On June 27, the Office of Management and Budget (OMB) announced that it concluded its review of the EB-5 Immigrant Investor Program Modernization rule. The completion of OMB review and release of the regulation is, based on the regulation map provided on the government’s website, step eight in the nine-step process to publication and enactment of a final rule. As such, publication of the final rule seems imminent. Nonetheless, today we are still uncertain of the future of the EB-5 Immigrant Investor Program Modernization rule. We do not know when the regulation will be published, if it will provide the normal grace period before becoming effective, or, more importantly, what changes the final rule will bring to the EB-5 program. Presumably, the final rule will largely resemble the draft regulations released in January, over two years ago.

In mid-January 2017, the Department of Homeland Security (DHS) published a notice of proposed rulemaking (NPRM) for the EB-5 program. Most prominently, in the NPRM, DHS proposed to increase the minimum investment amounts for all new EB-5 petitioners. Specifically, DHS proposed that the standard minimum investment amount should be increased from the current amount of $1 million to $1.8 million to adjust for inflation. At the same time, DHS proposed to increase the investment amount for those investors seeking to invest and file I-526 petitions in a new commercial enterprise that principally will be doing business in a targeted employment area (TEA), from $500,000 to $1.35 million. The proposed rules would also have provided for DHS to make future adjustments to the investment amount based on the Consumer Price Index for urban consumers every five years.