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Volume XI, Number 217

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What Will Happen if The Eb-5 Program Expires on June 30?

The EB-5 Regional Center program is set to expire again on June 30, 2021.  The US Congress has never made the Regional Center program permanent, and so it continued to be extended on a temporary basis every few months, most recently through June 30, 2021.

The Regional Center program has expired many times before, why is this time different?

Previously, the EB-5 Regional Center program’s extension was tied to the federal government’s omnibus budget bill.  The omnibus budget bill is considered “must pass” legislation, meaning that eventually Congress is expected to pass some form of the budget bill to keep the federal government working. The EB-5 Regional Center program’s authorization bill was attached as a rider to the budget, and therefore, it too was reauthorized when Congress passed the budget bills. In 2020, the EB-5 Regional Center program was removed from the budget bill and has a June 30, 2021 expiration.  For the EB-5 Regional Center program to be extended, Congress must separately authorize its extension through the passage of a law.

What will happen if Congress does not pass an extension bill by June 30, 2021?

If Congress does not pass a law to extend the EB-5 Regional Center program by June 30, 2021, the program will lapse.  During any period when the program is lapsed, it is likely that USCIS will not accept any new Form I-924 Applications for new regional centers or regional center amendment applications.  USCIS also will not accept any new Form I-526 petitions or I-485 applications based on an underlying I-526 Petition affiliated with a regional center.  It is likely that USCIS will hold pending I-924 applications, I-526 petitions, and I-485 applications in abeyance as they did previously during any period of lapse.  However, USCIS has not issued guidance recently on how they will handle petitions and applications should the program lapse on June 30, 2021.

Based on past statements of USCIS, I-829 Petition processing should not be affected.

Is the direct EB-5 Program affected?

Only the EB-5 Regional Center program is expiring on June 30, 2021.  EB-5 petitions filed as “direct” petitions, meaning there is no regional center affiliation and the petition relies on direct job creation of the new commercial enterprise, are not affected by the Regional Center program expiration.

Can Congress pass the extension of the EB-5 Regional Center program after June 30, 2021?

Yes, Congress can still reauthorize the EB-5 Regional Center program after June 30, even if there is some period of lapse.  At present, many industry groups and stakeholders are lobbying members of Congress to pass an extension of the EB-5 Regional Center program.

Greenberg Traurig continues to monitor the program’s authorization and will post additional updates as they become available.

 

©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XI, Number 170
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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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