The U.S. Department of Homeland Security has released a 358-page Notice of Proposed Rulemaking to formally implement the EB-5 Reform and Integrity Act of 2022, with new investor protections, stronger Regional Center oversight, and a proposed new investment tier. Public comments are open until August 31, 2026, before DHS issues a final rule.
Although much of the proposal codifies requirements already created by the 2022 law, several provisions could affect future EB-5 investors, Regional Centers, and program administration.
Proposed investment thresholds
The proposal would create a new $1.4 million minimum investment category for projects in designated High Employment Areas. These are regions within metropolitan areas with unemployment significantly below the national average.
For most EB-5 investors, the existing investment thresholds would remain unchanged:
- $800,000 for projects in Targeted Employment Areas, including rural and high-unemployment areas, and qualified infrastructure projects;
- $1,050,000 for standard EB-5 investments outside TEAs;
- $1.4 million for the proposed new High Employment Area category.
The $800,000 and $1,050,000 thresholds have been in effect since the EB-5 Reform and Integrity Act took effect in March 2022. The proposed rule updates older regulations that still referenced the previous $500,000 and $1,000,000 amounts. The only truly new threshold in the proposal is the $1.4 million High Employment Area category.
Two-year sustainment period
DHS confirms that EB-5 capital must remain “at risk” for at least two years from the date the funds are made available to the job-creating entity.
This is a major clarification for investors. Under previous practice, investors often faced uncertainty over how long their capital had to remain committed, especially when visa backlogs delayed green card processing.
Regional Centers previously redeployed repaid capital into new projects, sometimes without investor input, to satisfy the “at risk” requirement while investors waited for visa availability.
Under the proposed rule, redeployment would be less necessary. Once an investor satisfies the two-year sustainment period and meets the job creation requirements, the investment may be returned even if the investor remains in a visa queue because of government processing delays.
This change is expected to be especially relevant for applicants from countries with long EB-5 backlogs, including India and China.
Protections for good-faith investors
The proposal strengthens protections for investors affected by the termination or debarment of a Regional Center through no fault of their own.
If a Regional Center loses authorization, affected investors would receive 180 days to affiliate with another compliant Regional Center while preserving their original priority date.
Investors who have already completed the required sustainment period and met job creation requirements would generally not need to take further action.
This would be a major change from prior practice, where a Regional Center termination could jeopardize investors connected to the project even if they had complied with the program rules.
Cryptocurrency as a source of EB-5 funds
The proposal recognizes current USCIS practice that digital assets may be used as a lawful source of EB-5 investment funds, provided the applicant can document the lawful origin and transfer of those assets.
DHS is not immediately proposing cryptocurrency-specific evidentiary rules. Instead, it is requesting public comment on whether additional cryptocurrency regulations should be developed in the future.
Regional Center oversight
The proposed regulations would strengthen compliance obligations for Regional Centers and create a graduated enforcement system.
DHS could:
- issue warnings;
- impose monetary penalties;
- suspend operations;
- terminate a Regional Center’s designation;
- permanently debar organizations or individuals from EB-5 participation.
Serious violations could result in penalties of up to 10% of the total capital invested in the affected enterprises. Routine violations could also carry fixed fines. DHS gives $10,000 as an example penalty for failing to submit an annual statement on time.
Failure to pay an imposed penalty could itself count as a separate violation.
The proposal also formally implements several EB-5 Reform and Integrity Act requirements, including:
- mandatory audits;
- enhanced fund administration rules;
- expanded recordkeeping;
- registration requirements for domestic and overseas EB-5 promoters and marketing agents.
Many of these obligations have applied since the 2022 law took effect, but the proposed rule gives more detail on how DHS intends to implement and enforce them.
Compliance costs
DHS estimates that the proposed regulations would cost Regional Centers about $47,000 per year in compliance expenses.
Actual costs may be higher when legal fees, compliance staff, reporting obligations, and operational changes are included.
Smaller Regional Centers may face the greatest impact because fixed compliance costs are harder to absorb when an organization operates only one or two projects. Larger Regional Centers with existing compliance departments are likely better positioned to manage the added requirements.
Key dates for EB-5 investors
The proposed rule is subject to a 60-day public comment period ending August 31, 2026. DHS will review written comments before publishing a final regulation and may revise parts of the proposal based on feedback.
Industry attention is expected to focus on the proposed High Employment Area designation and the new $1.4 million investment threshold.
Several deadlines are approaching:
- August 31, 2026: public comment period closes;
- September 30, 2026: deadline for investors to file and qualify for EB-5 Reform and Integrity Act grandfathering protections;
- January 1, 2027: next inflation-based adjustment to investment thresholds is expected;
- September 30, 2027: EB-5 Regional Center Program authorization expires unless Congress extends it.
These dates may encourage some investors to file petitions before potential changes take effect.
The proposed rule is not final. For investors, it provides more clarity on the two-year sustainment period and protections if a Regional Center is terminated. For Regional Centers, it signals stricter oversight, higher compliance expectations, and stronger enforcement powers for DHS.
Source article: outboundinvestment.com
