EB5 Investors Magazine "Top 25 Awards Edition" Volume 8 Issue 1 | Page 91

then, congress has extended the regional center program 32 times, almost always as part of annual or interim funding bills, and more than 95% of EB-5 investments have used the program. The current expiration date is June 30, 2021, and for the first time that date is off of the normal funding cycle, which means that a renewal legislation needs to pass on its own or be part of some other legislative vehicle, which makes the effort more challenging and worrisome. WHAT HAPPENS IF THE EB-5 PROGRAM DOESN’T GET REAUTHORIZED? The shocking reality is that expiration of the program wi th o u t re n ewal wo u l d i nvalida te th e i m mig r a tio n processing of every regional center investor who has not already been admitted to the U.S. as a conditional permanent resident, even if they already have filed their "That would affect as many as 100,000 investors who have already placed their capital in a project and who might remain stuck in the investment while losing all immigration benefits" I-526 or have an approved I-526 and is waiting for a visa number or processing. That would affect as many as 100,000 investors who have already placed their capital in a project and who might remain stuck in the investment while losing all immigration benefits. The investors would not be able to “change gears” to try to count only the direct operational jobs of the project (if there would be any) if they invested through an NCE separate from a JCE (extremely typical). UNLIKELY THE EB-5 PROGRAM WILL EXPIRE Given how much the EB-5 investments have benefitted regional economies all over the U.S., it seems unlikely that congress will let the regional center program expire, but in the next renewal congress should eliminate the nagging worry that investors must face when considering whether to invest in the program: “Will congress keep renewing the program all the way through the 3 years USCIS might take to adjudicate my I-526, and then through the 10 or more years I might have to wait for a visa number if I was born in mainland China?” Congress should at least provide that the regional center legislation in effect at the time an investor files Form I-526 will remain in place throughout those waits until the investor can remove conditions on permanent residence through adjudication of Form I-829. The United States is a country of laws designed to protect reasonable expectations. This nation should not be encouraging people to invest to create jobs for us without protecting the reasonable expectations of investors who take the risk of such investment. R o b e r t C . D i v i n e c hair s the immigration group of Baker Donelson which has offices in 24 U.S. cities, including Washington, D.C. He served as the chief counsel from 2004 through 2006 and for a time, the acting director, at USCIS. Divine is the author of “Immigration Practice,” a 1,600-page practical treatise on all aspects of the U.S. immigration law. He served for seven years as the vice president of IIUSA, an industry association for EB-5 regional centers. He represents EB-5 developers, regional centers and individual foreign investors, balances immigration and securities considerations, and litigates when necessary. USCIS probably would hold I-526 petitions in abeyance for several months waiting for a retroactive legislative solution, but eventually if that solution did not come, USCIS would deny all pending I-526 petitions and revoke all I-526 approvals for all investors who had not already been admitted to conditional permanent residence. Affected investors might bring lawsuits against USCIS arguing that the expiration of legislation should only be prospective, but that would be an uphill battle. Investors who already were admitted as conditional residents would not be affected and would be able to file I-829 petitions to remove conditions. EB5INVESTORS.COM 91