October 27, 2021

Volume XI, Number 300

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EB-5 Investor Q&A – Regional Center Program Sunset

On Oct. 4, 2021, USCIS updated its EB-5 website and issued an alert regarding the current lapse of the EB-5 Regional Center Program. The Regional Center Program (the “Program”) has been lapsed since June 30, 2021, when Congress did not timely reauthorize it. USCIS confirmed on its website several important points for applications after June 30, 2021:

  1. USCIS will not accept a new Form I-526 Petition filed by an EB-5 investor based on a Regional Center investment until Congress reauthorizes the Program.

  2. USCIS will not accept a new Form I-485, Application to Adjust Status to Permanent Residence (the form used by immigrants with an approved I-526 to apply for the two-year green card in the United States), filed by an EB-5 investor and their family members until Congress reauthorizes the Program.

  3. For any Form I-526 Petition and I-485 Application pending as of June 30, 2021, USCIS will continue to hold these applications in abeyance until at least Dec. 31, 2021. At that time, USCIS will reevaluate the practice of holding these cases in abeyance based on the progress of legislation before the U.S. Congress.

  4. For any “Request for Evidence” issued on a Form I-526 Petition or I-485 Application, USCIS has confirmed that applicants should respond by the deadline.

  5. USCIS will continue to adjudicate Form I-829 Petitions for those investors filing to remove the conditions on the two-year green card. EB-5 investors can continue to file Form I-829, and USCIS will continue to adjudicate these petitions.

What is the status of legislation reauthorizing the EB-5 Regional Center Program?

At present, various Regional Center Program stakeholders have agreed upon terms to reauthorize and extend the EB-5 Regional Center Program. While no text of the legislation is available at this time, the proposed legislation would extend the program for several years, increase the minimum investment amounts to account for some inflation for newly filed cases, “grandfather” and protect existing EB-5 investors from subsequent law changes, and create a framework for Regional Center administration/oversight and investor protections.

It is anticipated that any proposed legislation to extend the Regional Center Program would be attached to an appropriations measure – either an omnibus or Continuing Resolution. Congress passed a short-term Continuing Resolution on Sept. 30, 2021, to continue funding the federal government through Dec. 3, 2021. Because of this, the Regional Center Program likely will not be extended until at least Dec. 3, 2021. This date could be pushed further, should Congress pass another Continuing Resolution to temporarily fund the government beyond Dec. 3.

How long will USCIS hold cases in abeyance?

USCIS updated its website on Oct. 4, 2021, to state that it will hold pending I-526 Petitions and pending I-485 Applications until at least the end of calendar year 2021, absent legislation reauthorizing the Regional Center Program. If no legislation is passed by Dec. 31, 2021, USCIS will reevaluate its policy to continue holding these cases in abeyance. USCIS may well be in contact with Congress and aware of upcoming legislation for the Program’s extension.

What will happen to pending cases if no reauthorization of the Regional Center Program is passed?

It appears that USCIS is monitoring the status of prospective legislation, as it confirmed on the website that it will hold cases until at least Dec. 31, 2021, and at that time, it will reevaluate whether to continue to hold these cases if no Regional Center legislation is passed. Moreover, there is additional proposed legislation to protect EB-5 investors who previously filed cases on or before June 30, 2021. If a significant period of time passes beyond Dec. 31, 2021, and no Program reauthorization is proposed by Congress, then USCIS potentially could deny pending I-526 Petitions. However, at this time, it appears that a bill will be attached to the U.S. Budget Bill to be taken up by Congress in December.

What will happen to EB-5 investors who are not yet in the United States on the two-year green card if there is no reauthorization of the Regional Center Program?

Importantly, there is no “grandfathering” at this time to protect investors who filed I-526 Petitions before June 30, 2021, when the Regional Center Program was authorized. USCIS is holding all I-526 Petitions and I-485 Applications. The National Visa Center (NVC) is holding all pending immigrant visa applications at this time. Before processing can resume on these cases, the Program must be reauthorized by Congress. Again, it appears that a bill will be attached to the U.S. Budget Bill to be taken up by Congress in December.

What will happen to EB-5 investors who are in the United States as conditional permanent residents?

USCIS confirmed on its website that EB-5 investors who are in conditional permanent residence can continue to file Form I-829, even during the lapse of the Regional Center Program. USCIS also confirmed it will continue to decide Form I-829 Petitions.

©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XI, Number 287
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About this Author

Jennifer Hermansky, Greenberg Traurig Law Firm, Philadelphia, Labor and Employment Immigration Attorney
Shareholder

Jennifer Hermansky focuses her immigration practice on both employment-based and family-based immigration. Jennifer has experience serving health care, pharmaceutical and real estate industries, as well as entrepreneurs, scientists and researchers in scientific communities. She represents clients in a wide range of employment-based immigrant and non-immigrant visa matters including students, professionals, managers and executives, artists and entertainers, treaty investors, individuals of extraordinary ability, and immigrant investors.

Jennifer...

215-988-7817
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