The Department of Homeland Security (DHS) has announced a significant proposed rule that would implement key provisions of the EB-5 Reform and Integrity Act of 2022 (RIA) and modernize the regulations governing the EB-5 Immigrant Investor Program.
The proposed regulation, entitled “EB-5 Reform and Integrity Act of 2022; Ensuring the Integrity of the EB-5 Program; Automatic Revocation of Petitions for Immigrant Classification” (RIN 1615-AC94), would amend regulations at 8 C.F.R. Parts 204, 205, 216, and 235. Although the full text of the proposal has not yet been published in the Federal Register, the rule is expected to comprehensively update USCIS regulations to reflect the statutory reforms enacted by Congress in 2022.
What the Proposed Rule Is Expected to Address
The EB-5 Reform and Integrity Act fundamentally reshaped the EB-5 Regional Center Program by introducing enhanced compliance requirements, greater oversight of Regional Centers, increased investor protections, and new integrity measures. Since enactment of the RIA, USCIS has implemented many of these changes through policy guidance and new filing procedures rather than formal regulations.
The forthcoming rule is expected to codify these statutory reforms and provide regulatory guidance on matters including:
- Regional Center designation, oversight, suspension, and termination;
- Compliance obligations for Regional Centers and affiliated parties;
- Administration of Forms I-956, I-526E, and I-829;
- Investor eligibility and sustainment of investment requirements;
- USCIS audit and enforcement authority;
- Good-faith investor protections; and
- Automatic revocation of immigrant petitions in circumstances prescribed by statute.
Automatic Revocation and Investor Protections
One of the most closely watched aspects of the proposal concerns automatic revocation of immigrant petitions.
The Reform and Integrity Act introduced important safeguards designed to protect investors who have complied with program requirements but may be affected by Regional Center termination or misconduct beyond their control. The proposed regulations are expected to clarify how USCIS will implement these statutory protections, including the circumstances under which investors may retain eligibility despite actions taken against a Regional Center.
This guidance should provide greater certainty for investors, project sponsors, and practitioners navigating post-RIA filings.
Practical Implications
Although the proposal is not yet in effect, it signals DHS’s commitment to fully implementing the Reform and Integrity Act through comprehensive regulations.
For investors, the regulations may provide additional clarity regarding eligibility, petition adjudications, and available protections.
For Regional Centers and project developers, the proposal is expected to establish more detailed compliance standards and operational requirements while formalizing USCIS oversight and enforcement authority.
Next Steps
Once published in the Federal Register, the proposed rule will be subject to a public comment period before any final regulation is issued.
At this stage:
- Current EB-5 filings continue to be governed by the Immigration and Nationality Act, the EB-5 Reform and Integrity Act of 2022, existing regulations, and current USCIS policy guidance.
- Stakeholders should carefully review the proposed regulations once released to assess their operational and legal impact.
- Regional Centers, developers, and investors should consider participating in the public comment process to address practical implementation issues and investor protections.
Wolfsdorf Rosenthal LLP Will Continue to Monitor Developments
The proposed rule represents the most significant regulatory development for the EB-5 program since enactment of the Reform and Integrity Act. Our EB-5 team will conduct a comprehensive review of the proposed regulations upon publication and provide detailed analysis of their impact on investors, Regional Centers, developers, and immigration practitioners.
If you have questions regarding the proposed rule or its potential effect on your EB-5 case or project, please contact a member of the Wolfsdorf Rosenthal LLP EB-5 Practice Group.
This alert is based on DHS’s announcement of the proposed rulemaking. We will publish a comprehensive analysis after the proposed rule is released in the Federal Register, when the specific regulatory text can be reviewed in detail.
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