How can EB-5 investors minimize exposure to proposed retroactive action?

Congress likely will not make any new law retroactive, although that provision is in some of the proposals. What may happen in the event of a retroactive application is that the petitioner may keep his or her original priority date (place in the queue). This might require a withdrawal and refiling of your I-526 petition. There really are no steps you can take to minimize the risk of Congress changing/reforming the EB-5 law.

Currently, there is a bill in Congress to raise the minimum investment amount from $500,000 to $800,000 for rural areas and from $1 million to $1.2 million. With this in mind, it is advisable to invest as soon as possible before major changes such as the investment amount become the law. Also, bear in mind that changes are likely to come, but no one knows the degrees and forms of those changes.

The best thing you can do to minimize the exposure to having the law changed retroactively is to file your EB-5 investor petition on Form I-526 at the earliest possible date. As of now, we are counting on a reauthorization of the EB-5 program before it expires in December, but it is not likely that we will have any substantive changes in the EB-5 program until next year. We will not know until the final legislation is enacted whether there will be any retroactivity or whether EB-5 petitions will be grandfathered based upon their filing date or an earlier date. So filing sooner is your best option.

I cannot promise retroactive action will not occur, but I have not seen it for this type of positive program in my 40 years of practice.

It is extremely unlikely that the retroactive provision will be actually included in the new law. There are constitutional ways to challenge it as well. Other than that, there is not way to limit the exposure.

Most experts do not anticipate that new regulations enacted by Congress will be retroactive. However, there can be no guarantee. It is very possible that Congress will reauthorize the current program for a relatively short period to allow Congress to make the needed changes. Most experts do not anticipate that Trump's election will impact EB-5. Your investment immigration attorney may recommend that you invest in a regional center that has exemplar approval as one way to avoid retroactivity.