The programme
8 CFR 204.6
Also called the EB-5 regulation, 204.6, 8 C.F.R. 204.6.
8 CFR 204.6 is the EB-5 regulation, and it still supplies the working definitions of employee, full-time employment and troubled business, but the text printed in the Code of Federal Regulations today is the 2019 version a court vacated, and USCIS applies the pre-2019 wording instead.
What it decides
The section has not been rewritten for the EB-5 Reform and Integrity Act of 2022, so what it still decides is vocabulary. Full-time employment means a position requiring a minimum of 35 working hours a week; a job-sharing arrangement where two or more qualifying employees share one full-time position counts as full-time employment; combinations of part-time positions never count, even when the hours add up. Employee, qualifying employee and troubled business are defined only here too, and USCIS cites 8 CFR 204.6(e) for each. Capital is no longer on that list. The RIA put a statutory definition at 8 U.S.C. 1153(b)(5)(D)(ii), and USCIS applies it to every petition filed on or after 15 March 2022. It bars capital invested with a guaranteed rate of return and capital carrying a contractual right to repayment, such as a mandatory redemption. Paragraph (e) contains neither bar. Do not quote the printed section at all without checking it. Behring Regional Center LLC v. Wolf vacated the 2019 Modernization Rule outright, not merely its dollar figures, and DHS never issued a rule to strip the vacated wording from the CFR, so the text on eCFR today is the vacated text. USCIS applies 8 CFR 204.6 as it stood on 20 November 2019. Three traps follow. The $1,800,000 and $900,000 in paragraph (f) are dead: 8 U.S.C. 1153(b)(5)(C) sets $1,050,000, or $800,000 in a targeted employment area or an infrastructure project, for petitions filed on or after 15 March 2022. The priority date retention in paragraph (d) is dead: the operative paragraph (d) grants none. The five year tax return and fifteen year judgment periods in paragraph (j)(3) are superseded by 8 U.S.C. 1153(b)(5)(L), which requires seven years of returns and sets no time limit on judgments. On 2 July 2026 DHS proposed to remove and reserve 8 CFR 204.6 and move EB-5 into a new subpart D of 8 CFR part 204, dropping job-sharing from the full-time employment definition and removing the troubled business route. Comments close 31 August 2026. None of that is law yet.
Where this is explained properly
Pages here that go into 8 cfr 204.6 rather than mentioning it.
Related terms
- 8 U.S.C. 1153(b)(5)8 U.S.C. 1153(b)(5), cited in filings as INA 203(b)(5), is the statute that creates the EB-5 category and, since the EB-5 Reform and Integrity Act of 2022, carries the investment amounts, the visa set-asides, the job creation caps and grandfathering in the statute itself. It runs from subparagraph (A) to subparagraph (S).
- EB-5 Reform and Integrity Act of 2022The EB-5 Reform and Integrity Act of 2022 is Division BB of the Consolidated Appropriations Act, 2022, Public Law 117-103, approved on 15 March 2022, and it rewrote the EB-5 category in the Immigration and Nationality Act.
- New commercial enterpriseA new commercial enterprise, usually shortened to NCE, is the for-profit entity formed in the United States that receives the EB-5 investor's capital and gives the investor an equity stake in return, and it is the enterprise the petition is built around.
- Regional centerA regional center is an economic unit, public or private, that USCIS has designated to sponsor pooled EB-5 investment within a defined, contiguous and limited geographic area, and it is the only route on which a petition may count indirect and induced jobs.
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