How could the proposed DHS regulations affect EB-5 investors priority date for refiled petitions?

Proposed legislation has no effect on what can be or what cannot be done regarding the EB-5 process. To be certain of what can be done, you will have to wait for the new legislation.

It is expected that petitioners who have filed their I-526 petitions with USCIS but have not received conditional permanent residence will be counted.

It is too early to tell what will be in the final version but we do expect that this will also include petitioners who have filed the I-526 form with USCIS but have not received conditional permanent residence yet.

As of this time, there is no certainty whether the proposed DHS regulations will ever be implemented given the likelihood that there will be EB-5 Regional Center reform legislation enacted prior to the end of the fiscal year. Any EB-5 Investor Petition filed on Form I-526 prior to the change in the law should be governed by the law that existed at the time the petition was filed.

No one knows until the final legislation is passed.

Yes, but the proposed regulation likely will not be implemented as is; it is more likely that Congress will reform the EB-5 program before 09/30/2017 and make changes that will be more agreeable than some of the previous proposals presented by agencies.

In the new proposed regulations for EB-5, there is language that allows an investor to retain an earlier priority date from a previously APPROVED I-526 Petition (i.e., an investor needs to file a new I-526 petition due to a material change in his/her investment, etc). The Priority Date cannot be retained if the original I-526 Petition was revoked by USCIS due to fraud or misrepresentation, or if the petition has not yet been approved.

No, the proposed regulations have no force of law. They do not affect all pending I-526 petitions. Even assuming the proposed regulations become law, they will not affect any pending petitions because the law bars retroactivity application of new regulations.