What will happen with EB-5 investors' petitions at the end of the year?
By Anayat Durrani
As 2021 comes to a close, the fate of EB-5 investors’ petitions in the regional center program loom. Industry stakeholders are urging USCIS to continue to hold all pending EB-5 regional center-related petitions and applications in abeyance beyond the end of calendar year 2021 to allow Congress enough time to pass legislation reauthorizing the EB-5 regional center program.
“It is imperative for Congress to act to reauthorize the EB-5 regional center program, and in the meantime that USCIS continue its flexibility in adjudicating or holding related petitions, so that these individuals who have invested significant time and resources into the U.S. economy are not adversely impacted by Congressional action,” says Sharvari Dalal-Dheini, director of government relations for the American Immigration Lawyers Association (AILA).
In a letter to the U.S. Citizenship and Immigration Services, AILA, Invest in the USA (IIUSA), and the EB-5 Investment Coalition (EB-5IC), jointly asked the department to hold EB-5 regional center related petitions and applications through the new year to give Congress time to reauthorize the EB-5 regional center program.
USCIS to reevaluate the hold of EB-5 petitions at the end of the year
The EB-5 regional center program expired on June 30, 2021. On the USCIS website, it states that it will hold all pending Form I-526, Immigrant Petition by Alien Investor, Form I-924, Application for Regional Center Designation, and Form I-485, Application to Register Permanent Residence or Adjust Status that are dependent on the lapsed statutory authority and were filed before the end of the statutory authorization in abeyance until the end of calendar year 2021, when it will reevaluate the hold.
“526 petitions will continue to be held in abeyance until/unless the RC program is reauthorized by Congress. However, 829 petitions will continue to be received and adjudicated as they have been,” says Mitchell L. Wexler, partner at Fragomen.
Industry stakeholders said that the lapse of the regional center program has left an estimated 100,000 individuals in immigration limbo. Some 83,000 EB-5 investors with approved EB-5 petitions and their family members remain pending abroad awaiting visa interviews, per the U.S. State Department. There are also 12,798 pending EB-5 petitions at USCIS for EB-5 investors.
“At least USCIS is adjudicating not only 829 petitions but ancillary applications to adjustment of status filings, i.e., work permits and advance parole. USCIS really cannot do much more until Congress acts,” says Wexler.
Jennifer Hermansky, shareholder with Greenberg Traurig, encourages USCIS to keep the public updated.
“USCIS should continue to liaise with the Congressional Judiciary Committees regarding the status of the EB-5 legislation, and update its website to alert the public and its stakeholders regarding its policy beyond December 31, 2021,” she said.
Higher demand for direct EB-5 investments
Wexler says there has been a significant rise in interest in direct EB-5 investments since that program is permanent. He says direct EB-5 petitions, at this time, are likely to be adjudicated much faster, at least while the regional center program is shut down since these are the only 526 petitions USCIS is allowed to work on.
“According to USCIS protocol, the priority date of the application must be current for their petition to be adjudicated. China/direct is current so this is adding a significant boost to general interest in EB-5 at this time,” says Wexler.