I understand that the new EB-5 rules will take effect next week. Last week a new bill was introduced to Congress to modernize the EB-5 program. What if that bill gets passed after Nov. 21 when the new EB-5 regulations have already become effective? What happens to the applications filed after Nov. 21 but before the new bill?
Unless there is anything in the new law that addressed those petitions filed between November 21 and before the new law, those petitions are likely to be grandfathered. In essence, those petitions will stay where they are and nothing will change. Some people are debating this scenario where retroactivity can actually create this type of dilemma but, the general rule is not to enforce a new law beyond its date of enactment.
Your petition would be governed by the existing regulations in effect at the time of your filing, and would not be affected by new provisions passed thereafter.
Until a new bill turns into law, the DHS regulations will cover the EB-5 program. It seems unlikely that Congress would make a new law apply retroactively but we will have to see how that plays out procedurally. In the meantime, we can only rely on what is actually effective, and this week it will be the DHS regulations.
If your application is already on file, it will be processed under the rules in effect on the date of filing. After Nov. 21, 2019, the new regulations kick in and are operative unless Congress passes something to override this.
Your petition will be governed by the regulations that were in effect at the time your petition was filed.
The likelihood is we will get another short extension to December 20, 2019. Thereafter, let us hope we get new legislation. That could improve some of the changes made by the November 21 regulations.
