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When will we know what changes there are in EB-5 law in 2017?

I will start my EB-5 application at the earliest in the fall of this year (2017). Who decides the changes to the program and when will we know what changes there are going to be? Will there be a grace period from when changes are decided and when they actually get implemented?

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    Answered on

    This is a very good question, and thank you for asking it. Unfortunately, with the new President, who has not yet opined on the EB-5 program and its future, it is not clear how the EB-5 program will continue after April 28, 2017, which is the date set by the Congress to have the regional center EB-5 program end via extension of the government appropriation called continuing resolution. Currently, there is a Senate proposal to eliminate the regional center program entirely and USCIS proposal to dramatically increase the EB-5 investment from $500,000 to $1.35 million on businesses located in a TEA and $1 million to 1.8 million on non-TEA business/projects. Neither of these will become effective immediately, and comments and votes must take place before it is implemented. However, it is perhaps a signal that people who want to undergo the process should do so sooner rather than later. To answer your question of who gets to make the laws and rules, Congress enacts the laws through statutes and USCIS enforces and administers through promulgating rules and regulations. In the 90s, Congress has enacted the EB-5 statute for direct investment, which is a permanent program. The Congress also enacted a pilot program of a regional center program where they could use the indirect jobs to show economic benefits in a region. This regional center program is the one that will sunset on April 28, 2017 if Congress does not reauthorize it. USCIS, as an agency to administer these laws, has the duty to promulgate rules and policies that they will use to adjudicate cases. Where Congress is silent in their statute they enacted or the interpretation of its statute is broad enough to allow USCIS to promulgate a rule more specifically, USCIS may do so. The new proposed rule on changing the TEA definition and the increase in investment amount is because the current EB-5 statute allows them to propose the rules and if Congress does not prohibit them by changing the statute, then USCIS may be allowed to take the proposed rule and make it a final rule after a comment period and revisions, if any. I expect there will be a lot of discussions and negotiations from all the stakeholders of EB-5, including the members of Congress and USCIS officials and businesses that utilize EB-5, to try to clarify and enact a new statute that will continue the regional center program, redefine TEAs and increase the investment amount. Exactly whose ideas will prevail or whether there could be a reasonable compromise that will make most of the interested parties, including the future investors, happy remains to be seen. I, for one, would love to get a pulse from the new President on where he stands on this issue. Stay tuned!

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    Answered on

    Probably close to the April deadline.

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    The current law is set to sunset on April 28, 2017. We hope after this date we will know what the law will be going forward.

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    We should know by April 28, 2017 what changes will be enacted in the EB-5 regional center program. It is that date by which the program must be reauthorized and there is a general consensus that it should be done in conjunction with EB-5 regional center reform legislation. Typically all petitions filed after the legislation is enacted would be subject to the new legislative requirements, although it is not possible to know that until there is final legislation.

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    Answered on

    It appears the Obama regulatory proposals may not go through. Since the regional center program expires April 28, 2017, an extension must be considered. It is my guess that Congress will consider and possibly enact new legislation before that date, and my guess is HR 5992, Chairman Goodlatte''s bill will be the core legislation, with changes of course.

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    Answered on

    Congress passed a bill for continuing resolution, which extended federal government funding through April 28, 2017. Included in this "stop-gap" measure is a very short-term reauthorization of the EB-5 regional center program through April 28, 2017, without any changes to the program. There are some major changes being proposed to the EB-5 program, including increasing the minimum capital investment, and the way and who determines TEAs. It may be advisable to file the EB-5 petition before the changes take place if you are opting to file through a regional Center especially.

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