Why the EB-5 Program’s Rules Can’t Be Changed Without Congress

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Key Takeaways

• The EB-5 Reform and Integrity Act of 2022 raised minimum investments to $1,050,000 ($800,000 for TEAs) and added compliance measures.
• The Regional Center Program is renewed through September 30, 2027, with 547 approved centers as of February 2025.
• Changes to the EB-5 Program require congressional approval; executive actions cannot alter its statutory provisions.

The EB-5 Immigrant Investor Program, enacted into law by Congress in 1990, is one of the most prominent immigration pathways for foreign investors seeking permanent residency in the United States 🇺🇸. Although discussions around potential revisions to this program often surface, the stable legal framework underpinning the EB-5 program ensures that such changes cannot be made easily or unilaterally. This article will explore why the president cannot independently revise the rules of the EB-5 program, emphasizing the congressional authority that governs it.

The Foundations of the EB-5 Program

Why the EB-5 Program’s Rules Can’t Be Changed Without Congress

The EB-5 program was established through the Immigration Act of 1990. It falls under the statutory framework of U.S. immigration law, specifically in Section 203(b)(5) of the Immigration and Nationality Act (INA). Since the program is codified into law, any attempts to modify its fundamental elements require congressional action. To clarify, statutory programs like EB-5 cannot simply be altered through executive orders or administrative discretion. Both the Senate and the House of Representatives must approve any proposed legislative amendments, which are then signed by the president. This process ensures a broad-based consensus before key changes are adopted.

While the president has some powers related to immigration, they are limited when dealing with laws fully enacted by Congress. Unlike regulations that can sometimes be adjusted by executive authorities, the EB-5 program’s structure is tightly bound to the provisions in the INA. This limitation underscores the critical importance of Congress in shaping the program’s direction.

Congressional Authority and Recent Actions

Congress has consistently exercised its authority over the EB-5 program, particularly when substantial reforms were required. The most telling example was the passage of the EB-5 Reform and Integrity Act of 2022, enacted on March 15, 2022, as part of an omnibus spending bill. This landmark legislation came after the Regional Center Program, a key component of EB-5, had lapsed on June 30, 2021. The reform bill not only reinstated the Regional Center Program but also updated several significant aspects of the program.

Key changes included raising the minimum investment amounts—standard investments increased to $1,050,000, while investments in Targeted Employment Areas (TEAs) rose to $800,000. The legislation also introduced the EB-5 Integrity Fund to boost oversight and added other integrity measures, like stricter compliance requirements for investors and regional centers. Another important provision provided new guidance on TEA designations, which determine areas eligible for the reduced investment threshold.

This congressional action showcases the detailed and rigorous process needed to make adjustments to the EB-5 program. Such reforms included multiple rounds of review and required the cooperation of various stakeholders, reflecting the checks and balances inherent in the U.S. legislative system.

The Regional Center Program: A Vital Component of EB-5

The Regional Center Program is an integral part of the EB-5 program that allows investors to pool their funds into larger projects typically associated with job creation. This program had previously faced uncertainty during its lapse before the 2022 reforms. Now renewed through September 30, 2027, the Regional Center Program remains essential to the program’s success.

As of February 2025, there are 547 approved regional centers. These entities serve as intermediaries between EB-5 investors and U.S. businesses, ensuring investments meet the job creation requirements mandated by law. While the U.S. Citizenship and Immigration Services (USCIS) administers the program, including adjudicating applications and overseeing compliance, its role is purely administrative. USCIS cannot unilaterally alter the program’s rules or redefine the statutory provisions set by Congress.

Economic and Political Implications

The economic contributions of the EB-5 program have been significant. Estimates suggest that EB-5 investments have generated over $5 billion for the U.S. economy and helped create hundreds of thousands of full-time jobs. These tangible benefits have also fostered strong advocacy by regional centers, businesses, and immigrant investors who support the program’s continuation and growth.

Moreover, the political landscape surrounding EB-5 frequently involves debates over investment thresholds, program integrity, and geographic priorities. While these discussions often lead to calls for reform, any modifications must go through the legislative process rather than unilateral executive action. Even in cases where momentum for change builds significantly, the need for congressional action ensures that all stakeholders’ perspectives are considered before decisions are made.

Protections for Investors

The structure of the EB-5 program also includes safeguards for investors, ensuring stability even amid legislative updates. For instance, when the 2021 Regional Center Program lapsed, many investors were concerned about the status of their pending applications. Congress addressed this uncertainty in the 2022 Reform Act by providing protection for current investors. One key provision allowed investors affiliated with terminated regional centers a 180-day window to update their petitions or demonstrate continued eligibility.

These measures highlight lawmakers’ intent to provide predictability for participants while preventing abrupt disruptions resulting from regulatory changes. For applicants and other stakeholders such as project developers, understanding these protections is crucial to navigating the program with confidence.

Future Outlook for the EB-5 Program

With the current authorization for the Regional Center Program set to expire on September 30, 2027, further congressional action will be necessary to ensure its renewal. Given the bipartisan support the program has enjoyed in the past, it is likely that lawmakers will find common ground to extend it, especially considering its significant economic impact.

Nonetheless, investors should remain informed about potential changes. Legislative revisions to investment thresholds, TEA definitions, or compliance requirements could emerge in future negotiations. Staying informed about congressional developments will ensure stakeholders can adapt to any new program dynamics.

Practical Considerations for Stakeholders

Both investors and regional centers can take proactive steps to prepare for possible shifts in the EB-5 program. While the existing statutory framework offers stability, stakeholders should be aware of certain practical realities:

Investment Thresholds: Increase or adjustment to these amounts always follows congressional debates, providing ample time for preparation.
Legislative Forecasting: Monitoring developments in Congress, especially issues tied to immigration reform, allows stakeholders to anticipate changes.
Compliance Requirements: Regional centers must continue to adhere to the enhanced integrity measures while keeping investors informed about project updates.

These considerations underline the slow and deliberative nature of program reforms, emphasizing the importance of stakeholders staying engaged in the legislative process.

Conclusion: The Congressional Lock on EB-5

The EB-5 program exemplifies how congressional lawmaking shapes immigration policies in the United States 🇺🇸. With its foundation deeply embedded in statute, the program is insulated against abrupt changes through executive orders or administrative decisions. The legislative process plays a crucial role in ensuring that modifications to the EB-5 program are deliberate, transparent, and inclusive of various stakeholders’ views.

While the program has undergone vital reforms, like the 2022 EB-5 Reform and Integrity Act, these changes were achieved through congressional consensus. As reported by VisaVerge.com, the program’s reliance on congressional authority has contributed to its stability and reliability. As the program evolves to meet changing economic and immigration goals, stakeholders can rest assured of its enduring structure under the guiding framework of U.S. law.

For official guidance on program requirements and updates, stakeholders can visit the U.S. Citizenship and Immigration Services (USCIS) EB-5 Program page for more information.

Learn Today

EB-5 Immigrant Investor Program → A U.S. immigration program allowing foreign nationals to gain permanent residency by investing in designated economic projects.
Immigration and Nationality Act (INA) → A federal law in the U.S. governing immigration policies, including eligibility criteria for various visa categories.
Targeted Employment Areas (TEAs) → Designated regions with high unemployment or rural areas where lower investment thresholds apply for EB-5 program eligibility.
Regional Center Program → A component of EB-5 enabling pooled investments into projects that create jobs, administered by approved centers.
EB-5 Reform and Integrity Act of 2022 → Legislation revising the EB-5 program, including investment increases, new compliance measures, and investor protections.

This Article in a Nutshell

Why EB-5 Program Rules Need Congress, Not the President

The EB-5 Immigrant Investor Program, rooted in U.S. law, requires congressional approval for changes. Unlike executive orders, program rules are safeguarded by legislation, ensuring stability for investors. Recent reforms, like increased investment thresholds, showcase bipartisan efforts. This congressional lock emphasizes the program’s deliberate, transparent evolution, benefiting both the economy and stakeholders.