By Anayat Durrani
As the lapse continues into 2022, Invest in the USA (IIUSA) has sent a letter to the U.S. Citizenship and Immigration Services (USCIS) on January 12, requesting the agency continue its 2021 policy to not act on any pending immigrant investor petition or application dependent on the EB-5 Immigrant Investor Regional Center Program re-authorization. The letter was in response to a USCIS Alert issued on December 30, 2021, reevaluating the decision to hold EB-5 Immigrant Investor Regional Center Program applications.
“EB-5 investors are very disheartened by the increased delays in reauthorization and in turn adjudication of their EB-5 petitions,” says Mona Shah, head of the law firm, Mona Shah & Associates Global.
Shah says many investors have chosen to back out of the process or were able to obtain their green card through a different petition and asked the project/regional center for a refund.
“Almost every project has deployed the investment funds and thus the project is not in a position to refund without jeopardizing the project and other investors,” says Shah. “Further, most project documents are impervious on the issue of withdrawal, except in cases of the denial of an I-526 petition. Should USCIS begin to reject or deny EB-5 petitions, it would allow the investors to litigate for the release of their funds.”
How USCIS can help EB-5 investors during the lapse
The IIUSA letter said during the lapse, protecting “good faith investors is critical to the program’s success for regional centers, immigrant investors, and regional and local economies.” The letter continued to state that investor advocates and EB-5 stakeholders believe the Regional Center Program will be reauthorized soon and said the IIUSA are working with Capitol Hill staff toward that goal.
“There is a good chance the Regional Center program will not be reauthorized by February 18th. If that happens, some fear that USCIS might give up and start sending NOID’s to existing applicants. I do not believe USCIS will do that,” says Marko Issever, Chief Executive Officer, America EB5 Visa, LLC.
Through their letter, Issever believes IIUSA sought to be pre-emptive and voice their opinion of support of USCIS’s continued decision of abeyance and also wanted to ensure that their position would not change should the program remain in a lapsed mode for too long.
The lapse of reauthorization of the EB-5 program
Congress has so far not enacted new legislation re-authorizing the EB-5 Immigrant Investor Regional Center Program.
“Regional Center EB-5 industry is under unprecedented pressure. Everyone is worried. Nobody seems to have a clear idea of what the future holds,” says Issever. “The program reauthorization expected to be by September 30th of last year was not. We then thought it would be reauthorized by December 3rd or shortly after. It was not. Some believe that it will be reauthorized by February 18th this year. Unfortunately, there are more pressing immigration-related issues Congress has to worry about than EB-5.”
He says the industry had an opportunity to affect reauthorization last year by June 30th, but refused consensus “and alienated the Congressmen working hard to get a long-term resolution.”
“I believe that the industry does recognize that February 18 may come and go without re-authorization and are nervous that USCIS may decide to end the backlog of cases by rejecting I-526 petitions,” says Shah.
Shah believes re-authorization will definitely occur, but not on February 18, but more likely March or June. She notes that information from a senior staffer at the office of Senator Chuck Grassley (R-Iowa) stated that they will get to the EB-5 issue in the first half of 2022.
“I do not believe that the bill introduced by Senator Graham and Rand-Paul will pass, rather that re-authorization will depend upon the Grassley-Leahy Bill, perhaps absent the TEA and minimum amount issues. I do believe that USCIS will pass new regulations this year that will cover the TEA and minimum amount,” says Shah.
In the meantime, Issever says there is tremendous fatigue by existing investors.
“A class-action suit against the US government could have disastrous consequences for everyone involved in the EB-5 industry. Therefore, without further delay, we should reach a consensus around legislation Congress is ready to pass,” says Issever.