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.
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