The EB-5 Regional Center program continues to lapse as the U.S. Congress sifts through legislative priorities like the President Biden’s “Build Better Back” bill, the defense budget, the debt ceiling, and others. It is beyond frustrating for many who have been waiting anxiously since June 30, 2021, for reauthorization.
Bernie Wolfsdorf, WR Immigration’s Managing Partner, stated, “If the U.S. government fails to extend the program, after 30 consecutive extensions, this would adversely impact the U.S. as a reliable investment market, and we are likely to see a further steep decline in Foreign Direct Investment (FDI). FDI has recently recorded a 49% drop to an estimated $134 billion. This will ultimately impact the U.S. in many critical areas including job loss. While I am confident Congress will extend, or at least grandfathering existing immigrant investors who have followed the rules, it is difficult to understand the logic where Congress allocates 55,000 green cards in a random giveaway lottery, but immigrant investors who have put billions into the U.S. economy, and have created tens of thousands of jobs, are forgotten. Many investors have diligently saved every dollar to invest in the EB-5 program to give their children the opportunity to study and live the American Dream. Congress is shamelessly playing political football with these investors.”
Below are answers to some frequently asked questions by EB-5 investors.
What happened on December 3, 2021?
On December 3, 2021, the U.S. Congress passed another Continuing Resolution to fund the federal government at current levels through February 18, 2022, averting a government shutdown but without reference to the EB-5 Regional Center program.
Why wasn’t reauthorization of the EB-5 Regional Center program included?
Reports indicate a desire by the Congressional leadership to reauthorize the EB-5 Regional Center program, but it does not appear to be a priority. It appears the EB-5 Regional Center program is caught in the middle of politics, with Republicans unwilling to do anything in hopes of retaking Congress in 2022, and Democrats unwilling to provide relief to wealthy immigrant investors but not to asylum-seekers or those children brought to the U.S. by their parents and are now on DACA.
Will USCIS deny pending Forms I-526 or Forms I-485 filed by EB-5 Regional Center investors?
In October 2021, USCIS wrote: “Until further notice, we will hold (that is, not act on) any pending petition or application of these form types that is dependent on the lapsed statutory authority and was filed before the end of the statutory authorization. At the end of calendar year 2021, unless there is new legislation for regional centers, we will reevaluate whether to keep this hold in place.”
At this time, those with pending adjustment of status applications can lawfully remain in the United States, though WR Immigration recommends maintaining the underlying nonimmigrant visa status to keep as many immigration options available as possible.
WR Immigration will provide another update when USCIS provides further guidance on this issue.
Will the U.S. Department of State issue an Immigrant Visa to EB-5 Regional Center investors?
No. The December 2021 Visa Bulletin states: “No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases after June 30, 2021.”
Will my child age-out during the lapse of the Regional Center program?
This is a case-specific inquiry and general advice cannot be provided in this FAQ. However, under the Child Status Protection Act, the time while a Form I-526 remains pending (including during the lapse) can usually be subtracted from a child’s age upon Form I-526 approval, if a visa is immediately available at that time. Meaning if the visa category is not backlogged at the time of approval. For many Chinese applicants, it remains backlogged, so this is a concern for some Chinese nationals.
How does the lapse impact the ability to recoup my EB-5 investment?
An immigrant investor must sustain an “at risk” investment through at least two years of conditional green card status. As such, EB-5 investment funds are required to be sustained for a longer period of time the longer it takes USCIS to adjudicate a Form I-526
Will USCIS adjudicate Forms I-765 and I-131 related to pending EB-5 Regional Center Forms I-485?
Yes. USCIS will continue accept and adjudicate Forms I-765 and I-131 relating to these pending Forms I-485, as well as any extensions.
Will USCIS adjudicate Forms I-829 filed by EB-5 Regional Center investors?
Yes.
What options do immigrant investors have to remain in the U.S. or enter the U.S. during the lapse of the EB-5 Regional Center program?
Please contact a WR Immigration attorney for a consultation to discuss the specifics of your case. One of the biggest issues relates to an investor’s “immigrant intent,” when many nonimmigrant visas options require the individual to have a residence abroad that he or she has no intention of abandoning. It may be worthwhile to consider filing a case in the H-1B lottery if there is a U.S. employer willing to petition. Alternatively, it may be possible to register for a university extension course to fill the gap if the applicant wants to study. Another option for extraordinary people is the O-1 visa for persons of extraordinary ability.