By Kristen W. Ng
As the EB-5 program neared a sunset date of Sept. 30, 2017, it was given a clean extension through Dec. 8, 2017 as part of a package of government continuance and public safety measures. It was extended as part of a Continuing Resolution that would continue to fund the government until Dec. 8, 2017. Three other immigration programs were also extended to Dec. 8, 2017, including E-Verify, Conrad 30 and Religious Workers. This sequence of activities and timeline is very different from the previous two years, when the Continuing Resolution was not passed until the very last minute, close to Sept. 30. Instead, on Sept. 7, the Senate voted to pass the Continuing Resolution, 80-17, and on the same day the House of Representatives also passed it with a vote of 316-90.
After the Continuing Resolution (as well as Debt Extension, and others) passed both the Senate and the House, it was sent to the President for signature. On Sept. 11, 2017, President Trump signed H.R. 601, which was the bill that included the Continuing Resolution extending the EB-5 program.
The extension is short in nature, which means that the EB-5 program will face another expiration date on Dec. 8, 2017. In the interim, there are other factors occurring in the EB-5 world, including:
Possible Legislation: To date, there have been 12 EB-5 bills introduced in the House and the Senate since 2015. It is clear that legislators, as well as the EB-5 industry, support change and reform to the program. Currently, key lawmakers are negotiating for an EB-5 bill that could pass as part of the next Dec. 8 push. The topics that are of high interest include minimum investment amounts, visa capacity, Targeted Employment Area (“TEA”) definitions, and other integrity measures.
Regulations: The Department of Homeland Security (“DHS”) published for the public’s notice and comment proposed changes to the regulations for the EB-5 program. The comment period closed on April 11, 2017, and it remains to be seen whether the proposed changes will be published as a final rule.
If legislation passes, then the regulations will not be finalized, and the bill will go into effect. It remains to be seen what an EB-5 reform bill will include as there has been no bill introduced, nor a draft available for review. For now, the EB-5 program has a short window where it remains as is, with nothing changed to the program.