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What will happen to my pending Adjustment of Status application if the EB-5 Regional Center Program is not extended?

Although Congress has once again temporarily extended the EB-5 Regional Center Program, what will happen if they let it expire and cancel it while my Adjustment of Status Application is still pending? Additionally, what if it gets canceled before I can apply to remove my conditions? Will I still be eligible to continue my EB-5 application?

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    Charles Foster

    Immigration Attorney
    Answered on

    Given the fact that you have filed an Application for Adjustment of Status, it is likely you already have an approved EB-5 I-526 petition. As such, even if the EB-5 regional center program is not continued, you should still be eligible for an Adjustment of Status to become a conditional permanent resident. In that case, 18-24 months later, you will be required to file an I-829, Application to Remove Conditions. If the EB-5 regional center program is not reauthorized by Congress, you could continue under the program since you filed before its expiration. However, your hypothetical question is based upon the fact that the EB-5 regional center will not be reauthorized. This is unlikely. Congress on both sides of the aisle has strongly supported the EB-5 program and there is every reason to believe that the EB-5 regional center program will be extended again; this time, perhaps, with some significant modifications to the program. However, given the fact that your I-526 petition has already been filed and approved, in all likelihood, your petition would be subject to the provisions of law that existed at the time you filed your I-526 petition.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    At this stage in your processing (and most likely for all EB-5 investors that have a filed/pending EB-5 Petition), you should be grandfathered in so that the potentially implemented changes would not affect your case.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    This is a good question, to which USCIS nor Congress, has yet explicitly addressed. Under the Administrative Procedure Act and the EB-5 regulations, the petition, already filed before the sunset date, should be grandfathered and adjudicated as they were approvable when filed. However, the Congress or USCIS could do something different and this could be a contentious litigation issue. As an analogy, consider a sold-out concert that gets canceled at the last minute: the most that the concertgoers could hope for is to get their money back for the ticket. However, this analogy falls short as most of the investment funds were already invested in EB-5 projects and utilized, thus making it impossible to immediately return the investment back to the investors without suffering catastrophic consequences for the project. Thus, we all hope that Congress and the government would come to an economically good decision and extend the program.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Legally, you and other petitioners who are already in the pipeline will be able to complete the process.

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    Ian E Scott

    Immigration Attorney
    Answered on

    The pending applications (especially Adjustment of Status) will likely be processed but, to be sure, we will have to wait for the legislation.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If Congress does not extend the program beyond December 8, 2017, all regional center cases will have to meet the rules for the permanent program; that is, to create 10 full-time jobs. It would be awful, as most cases will be denied. However, I do have confidence that Congress will not be so irresponsible. I also understand a deal for another 5-year extension is close.

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