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How could the proposed DHS regulations affect EB-5 investors priority date for refiled petitions?

In my understanding of the recently proposed DHS regulations regarding the EB-5 program, certain EB-5 petitioners may retain their priority date when filing new petitions due to circumstances beyond their control. Does this proposed rule include petitioners who have filed the I-526 form with USCIS but have not received conditional permanent residence, yet?

Answers

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    Answered on

    Proposed legislation has no effect on what can be or what cannot be done regarding the EB-5 process. To be certain of what can be done, you will have to wait for the new legislation.

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    Answered on

    It is expected that petitioners who have filed their I-526 petitions with USCIS but have not received conditional permanent residence will be counted.

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    Answered on

    It is too early to tell what will be in the final version but we do expect that this will also include petitioners who have filed the I-526 form with USCIS but have not received conditional permanent residence yet.

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    Answered on

    As of this time, there is no certainty whether the proposed DHS regulations will ever be implemented given the likelihood that there will be EB-5 Regional Center reform legislation enacted prior to the end of the fiscal year. Any EB-5 Investor Petition filed on Form I-526 prior to the change in the law should be governed by the law that existed at the time the petition was filed.

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    Answered on

    Yes, but the proposed regulation likely will not be implemented as is; it is more likely that Congress will reform the EB-5 program before 09/30/2017 and make changes that will be more agreeable than some of the previous proposals presented by agencies.

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    Answered on

    No one knows until the final legislation is passed.

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    Answered on

    In the new proposed regulations for EB-5, there is language that allows an investor to retain an earlier priority date from a previously APPROVED I-526 Petition (i.e., an investor needs to file a new I-526 petition due to a material change in his/her investment, etc). The Priority Date cannot be retained if the original I-526 Petition was revoked by USCIS due to fraud or misrepresentation, or if the petition has not yet been approved.

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    Answered on

    No, the proposed regulations have no force of law. They do not affect all pending I-526 petitions. Even assuming the proposed regulations become law, they will not affect any pending petitions because the law bars retroactivity application of new regulations.

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