September 23, 2019

September 20, 2019

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USCIS Requests OMB for Review of Proposed Rule-Making for the EB-5 Program

On Dec. 20, 2016, the Department of Homeland Security (DHS) United States Citizenship and Immigration Services (USCIS) requested that the Office of Management and Budget (OMB) review a proposed rule making that would make changes to the current regulations as it relates to the EB-5 Immigrant Investor Program.  The title of this rule is “Improvement of the Employment Creation Immigrant Regulations.”

DHS had previously released the Fall Unified Agenda and updated it in Nov. 2016 reflecting the date of Notice of Proposed Rulemaking (NPRM) to Jan. 2017.  The proposed changes by DHS, as stated in the summary, include measures to promote predictability and transparency in the adjudication process, enhance program integrity, clarify requirements for regional center designation, retain priority dates in certain circumstances, and streamline the adjudication process for petitions.  At a USCIS Stakeholders meeting in April 2016, DHS had stated that the rule making will include changes to minimum investment amount, job creation, targeted employment area requirements, and regional center designation.

Now that the OMB’s Office of Information and Regulatory Affairs (OIRA) has received the rule making for review, there will be a review period, typically restricted to 90 days, though there is no minimum number of days set.  The period of review can extend beyond 90 days by the rulemaking agency, or by the OMB director.

The OMB can then send the regulations back to USCIS with or without comments.  USCIS will have the opportunity to review any received comments and take administrative action, such as the issuance of notice of proposed rulemaking (NPRM) in the Federal Register.  It is unclear what position the new Administration will take on regulations promulgated in the final days of the previous Administration, although press reports are that the new Administration will “freeze” or even cut regulations rather than allow new ones to advance.  If the NPRM is issued, there will typically be a 60 day notice and comment period.  USCIS will then review and revise the rule accordingly, and can issue a final rule that is published in the Final Register.

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About this Author

Kristen Ng, Greenberg Traurig Law Firm, Nortrhern Virginia, Immigration Law Attorney

Kristen W. Ng focuses her practice on business immigration and compliance matters. She advises individuals and companies on a wide range of immigration matters, including nonimmigrant and immigrant employment-based cases, citizenship issues (acquisition, retention and relinquishment) and investor cases (E-2 and EB-5). She communicates directly with clients, including HR managers, high-level executives, and employees to ensure comprehension of each respective immigration process and procedure and to collaboratively produce the best immigration strategy and approach for...