On March 23, 2018, Congress passed and President Trump signed the Omnibus Appropriations Act for Fiscal Year 2018 (the “Omnibus Act”), a $1.3 trillion spending bill, as federal funding and the EB-5 program were due to expire. The Omnibus Act includes a six-month extension to the Immigration Investor Program known as “EB-5,” without changes to the program. Since the Great Recession of 2008, the EB-5 program has emerged as a valuable source of capital for large and small public and private companies and real estate development projects from coast-to-coast, including solar plants, transportation and infrastructure improvements, manufacturing facilities and more. The U.S. Department of Commerce’s data corroborates the positive influence on the U.S. economy through the EB-5 program. The clean extension to the EB-5 program keeps the minimum investment amounts at $500,000 for projects located in a targeted employment area (“TEA”) and $1 million for projects outside of a TEA.
The Omnibus Act’s clean extension of the EB-5 program brings relief to many. In recent weeks leading up to the April 23 expiry of the program, a very short-lived draft bill, the EB-5 Immigrant Investor Visa and Regional Center Reform Act (“Draft Reform Act”), appeared to have a formidable chance of inclusion in the Omnibus Act. The Draft Reform Act contained numerous favorable reform measures, but also missed the mark on others. In particular, the Draft Reform Act failed to increase the annual visa quota to address the accumulating backlog. Moreover, the Draft Reform Act would have imposed a 120-day standstill upon enactment whereby USCIS would not have been authorized to accept any new Form I-526 or Form I-924. For companies and developers presently in the middle of fundraising, the four-month halt to fundraising could have been particularly harmful. The Draft Reform Act ultimately was not included in the Omnibus Act.
Still in the works is more comprehensive reform to the EB-5 program through draft EB-5 regulations presently under review with the Office of Management and Budget. The draft EB-5 regulations are likely to be an amalgamation of recent EB-5 reform proposals.
These draft regulations could be enacted at any time, even before September 30, 2018.