Recent EB-5 Program Extension Changes the Dynamic for Reauthorization

 

By Dillon R. Colucci

At the end of 2020, congress passed another short-term extension of the regional center portion of the EB-5 program until June 30, 2021. However, it came with a twist. For the first time in recent history, the regional center portion of the EB-5 visa program will not expire at the same time as congress must pass legislation funding the government. This has been described as a “decoupling” of the regional center EB-5 program from the U.S. government funding. In essence, in order for the regional center portion of the EB-5 program to be reauthorized, a standalone bill must be passed by both houses of congress. And because this legislation will have to stand on its own, it is likely that legislative reform of regional centers will occur.

While it is too early to speculate on the parameters of a reform bill, there is more confidence industry wide that a reform will occur as opposed to a standard reauthorization without change. The chances of reform may also be bolstered if recent court actions against the regulations finalized in Nov. 2019 are successful. The success of those court actions could have the effect of reducing the minimum investment to $500,000 until such time as reform is passed or new regulations are lawfully promulgated. 

Given that the EB-5 reauthorization of the regional center portion of the EB-5 program is entering new territory, it is a good time to review what would happen if the regional center portion of the EB-5 program expired. A short-term expiration would likely result in USCIS adopting similar procedures to those which were in effect when lapses have happened in the past. During past lapses in authorization, USCIS continued to receive regional center affiliated I-526 and I-485 petitions and merely set them aside until such time as reauthorization occurred. In a worst-case scenario where reauthorization never occurs, pending regional center affiliated I-526 and I-485 petitions could ultimately be denied. With respect to regional center affiliated I-829 petitions, USCIS will continue to issue receipt notices even if there is a lapse or expiration of the regional center portion of the EB-5 program, and still has the authority to adjudicate regional center affiliated I-829 petitions even during a lapse or expiration.