The U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) published a draft of new rules for the EB-5 investor visa program, through which foreign investors can obtain U.S. permanent resident status by investing capital in an American business and creating jobs.
The primary source of the information is the DHS/USCIS document “EB-5 Reform and Integrity Act of 2022; Ensuring the Integrity of the EB-5 Program; Automatic Revocation of Petitions for Immigrant Classification,” published for the Federal Register. This is specifically a notice of proposed rulemaking, meaning a draft rule for public discussion, rather than a final regulation that has already entered into force. The document is to be published in the Federal Register, and comments will be accepted for 60 days after publication.
The EB-5 program allows a foreign national to apply for permanent residence in the United States if they invest in a new commercial enterprise in the United States and create at least 10 permanent jobs for qualified U.S. workers. Following the 2022 reform, the standard minimum investment amount is $1.05 million, while for projects in a Targeted Employment Area (TEA) or infrastructure projects it is $800,000.
The main change in the new proposal is that the United States wants to formally establish a stricter architecture for the EB-5 program following the adoption of the EB-5 Reform and Integrity Act of 2022. DHS states that the proposal is intended to bring the rules for investors and the Regional Center Program into line with the 2022 reform, strengthen transparency and oversight of participants, and protect the program from fraud.
One of the most notable provisions is a new category of high employment area, meaning areas with high employment. For projects in such locations, DHS proposes setting an increased minimum investment threshold of $1.4 million. This is higher than the standard $1.05 million and is intended to reduce the incentive to direct EB-5 money into already prosperous areas instead of territories that genuinely need investment and jobs.
DHS also proposes automatically reviewing investment thresholds starting January 1, 2027, and every five years thereafter. The standard amount is to be indexed to inflation, while for TEA and infrastructure projects the reduced threshold will equal 75% of the standard amount. For a high employment area, the amount is to equal 133% of the standard threshold, rounded to the nearest $50,000.
Another important section for investors concerns verification of the source of capital. DHS proposes establishing a requirement that the investor must prove the lawful origin not only of the investment itself, but also of the funds used to pay administrative expenses and fees. The document separately states the need to show the path of the money from the investor to the new commercial enterprise, including bank statements, tax documents, transfer confirmations and information about intermediaries.
The rules for intermediaries are also being tightened. The proposal provides for the registration of promoters, including migration agents, who advertise or promote investment offerings of regional centers. Promotional materials must accurately describe the visa process and permitted commissions, while the definition of promotional materials includes advertising, offering memoranda, recommendations, testimonials, solicitation and communication with investors.
Particular emphasis is placed on the Regional Center Program, through which the majority of EB-5 investments are made. DHS states that more than 90% of EB-5 petitions are filed through regional centers, and that since 1994 they have accounted for about $74.97 billion in investments and 239,580 jobs created. The Regional Center Program is authorized through September 30, 2027.
For regional centers, the proposal introduces stricter requirements for disclosure of information, changes in ownership structure and vetting of individuals associated with the centers, new commercial enterprises and job-creating entities. USCIS will be able to suspend the consideration of applications and petitions if changes in ownership or control require separate review.
The EB-5 visa quota accounts for 7.1% of the overall worldwide limit for employment-based visas, usually about 9,940 visas per year. Following the 2022 reform, 20% of EB-5 visas are reserved for investments in rural areas, 10% for areas with high unemployment and 2% for infrastructure projects.
For the investment immigration market, this means that EB-5 is becoming less like “buying a green card” and more like a regulated investment product with increased scrutiny of the source of funds, the project, intermediaries and the regional center. The new rules may be particularly sensitive for investors who planned to invest in projects in large and economically strong urban areas: there the threshold may rise to $1.4 million.
The practical conclusion for investors is simple: for now, this is a proposed rule, not a final regulation that has entered into force. But the direction of the reform is already clear: the United States wants to strengthen oversight of EB-5, limit the use of the program in prosperous areas, raise documentation requirements and make regional centers more accountable. Therefore, before filing under EB-5, an investor will have to check not only the profitability of the project, but also its geographic category, visa quota, regional center status, fee structure and documentary evidence.
