By Suresh Rajan
Industry experts remain positive the program will be current again by year-end
One of the most popular immigration-by-investment programs in the world, the US EB-5 Regional Center Program, has been paused since June 30.
The program’s authorization has lapsed before, but it has never taken this long to be reinstated. The current pause has led to frustration and anxiety among investors.
The good news is that a lot of work is being done within the industry, and industry experts remain positive the program will be current again by year-end.
The EB-5 Regional Center program has had a very confusing and frustrating last six months.
In late June this year, the Behring decision reset the EB-5 regulations to their pre-Nov. 2019 modernization rule parameters, returning the minimum investment to $500,000 from $900,000 in Targeted Employment Areas.
That same week, the effort to pass the Grassley-Leahy bill (S.831) to reauthorize the program by unanimous consent in the Senate was blocked.
The June 30, 2021, sunset date has paused the EB-5 Regional Center Program. The EB-5 direct investment program was unaffected since it is a permanent part of US immigration law.
Since June, on the legislative side, Congress has been very active on major bills that could include EB-5 reauthorization, including the bipartisan infrastructure bill and a Democratic-led reconciliation bill.
On the regulations side, the Department of Homeland Security has reposted its ratification of the 2019 rules and filed a notice of its intent to appeal the Behring decision, demonstrating its intent to return the EB-5 minimum investment amount to $900,000.
New petitions are being accepted for direct EB-5 investments, with a minimum investment of $500,000. However, USCIS is not accepting new I-526 petitions filed through the EB-5 Regional Center program, nor is it processing pending petitions.
For investors who have already filed a petition via Regional Center, different scenarios apply depending on where they are in the immigration process:
For investors who already have conditional green cards, processing will continue normally; they still need to file their I-829 (removal of conditions) petition, which USCIS will adjudicate.
For investors waiting for an Adjustment of Status, USCIS confirmed they are adjudicating I-131 (travel document) and I-765 (employment authorization) applications associated with pending I-485 petitions relating to the EB-5 Regional Center Program.
For investors who have only filed an I-526 and received a receipt, the application is currently being held in abeyance and will not be adjudicated by USCIS.
The I-131 is an application for a travel document, whereas the I-765 is an application for employment authorization. These are two very important documents for those seeking to adjust their immigration status.
This is great news for those who have received an approval on their I-526. We are delighted to see this additional clarity from USCIS and look forward to receiving positive news from such applicants.
USCIS has recently updated its policy alert maintaining petitions “in abeyance” until the end of 2021: “At the end of calendar year 2021, unless there is new legislation for regional centers, we will re-evaluate whether to keep this hold in place.”
EB-5 expert Suzanne Lazicki says, “Congress seems to need cliff-hanger deadlines to make them act, and USCIS is now offering one.”
Petitions will not be moved forward, and will possibly be returned, only if the program is discontinued. However, there has been a lot of activity indicating that USCIS and Congress are working to make the program current again—and not to discontinue it.
In fact, EB-5 petitions are considered an important part of USCIS Investor Program Office funding, and that itself shows their value to the US government.
(Suresh Rajan is the founder & executive chairman of LCR Capital Partners)