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This rule would propose amendments to the regulations that, if finalized, would fully implement the EB-5 Reform and Integrity Act of 2022 (RIA). The RIA substantially reformed the employment-based, fifth preference (EB-5) visa category for immigrant investors and the associated Regional Center Program. In general, under the EB-5 program, noncitizens are eligible to apply for lawful permanent resident status in the United States if they make the necessary investment in a new commercial enterprise in the United States and create 10 permanent full-time jobs for qualified U.S. workers. DHS published an Advance Notice of Proposed Rulemaking (ANPRM) on January 11, 2017, seeking public input on a range of issues related to the Regional Center Program. While the RIA directly addresses many of the questions for which DHS previously sought public feedback, DHS reviewed comments received on that notice to inform several of the proposals included in this proposed rule.

Statement of Need:

This proposed rule would revise DHS regulations to fully implement the various provisions of the INA added or amended by RIA, as the RIA made major revisions and introduced enhanced integrity provisions to the EB-5 program, including the Regional Center Program.

Summary of the Legal Basis:

On March 15, 2022, the President signed into law the EB-5 Reform and Integrity Act of 2022 (the RIA), Div. BB of the Consolidated Appropriations Act, 2022, Public Law 117-103. DHS publishes this proposed rule under the authority of the RIA. Among other things, the RIA immediately repealed the former authorizing statutory provisions for the Regional Center Program under the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Pub. L. 102-395, 106 Stat. 1828, sec. 610, and added new authorizing provisions to the INA, substantially reforming the Regional Center Program effective May 14, 2022. The reformed Regional Center Program is authorized through September 30, 2027.

The Secretary of Homeland Security’s authority for the regulatory amendments is found in various provisions of the INA, Act of November 2, 2002, Public Law 107-273, 116 Stat. 1758, and the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq. General authority for issuing the rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to administer and enforce the immigration and nationality laws, including establishing regulations deemed necessary to carry out that authority, as well as section 102 of the HSA, 6 U.S.C. 112, which vests all of the functions of DHS in the Secretary and authorizes the Secretary to issue regulations.

Anticipated Costs and Benefits:

DHS is currently considering the specific cost and benefit impacts of the proposed provisions.