U.S. EB-5 Program

On December 13, 2017, the House Appropriations Committee introduced a Continuing Resolution that would for the short term extend federal funding and maintain current federal operations (currently authorized to December 22) until January 19, 2018. Although the provisions do not state EB-5per se, it is highly possible that EB-5 will hitchhike the CR and get another short extension to next year.

While we follow up on the legislation ball, the Office of Management and Budget has announced a new EB-5 deadline to consider. The Spring 2017 Unified Agenda had mentioned April , 2018 as a “Final Action Date” for regulations dealing with EB-5 investment amounts and TEAs (RIN 1615-AC07), but now the Fall 2017 agenda has advanced that prediction to February, 2018.
 
We don’t know up till now what will be in the final Rule 1615-AC07, since it may have been revised significantly since the Notice of Proposed Rulemaking. But as a reminder, here’s what was proposed:
 

• Increase the standard minimum EB-5 investment amount to $1,800,000, or $1,350,000 in a TEA.

One of the biggest changes proposed to the EB-5 Program is raising the minimum investment amount. This is expected to cause a drop in applicants. On the one hand, applicants may turn to other visa categories or even other countries for better immigration options, but, on the other hand, applicants who are determined to immigrate to the U.S. and are not as concerned with an increased minimum investment amount may benefit from less applicants, as their application may be processed faster as a result. This would be particularly beneficial to applicants from Mainland China who suffer from an EB-5 visa backlog.

• A TEA is based on high unemployment and incentivized with 25% reduction to the investment amount (not other factors or incentives as proposed by Congress).

• A TEA can only be designated for a high-unemployment MSA, county, city, single census tract, or limited group of census tracts. DHS, not the states, is responsible for TEA designation.

• Give priority date protection (an investor with an approved I-526 could choose to file a new I-526 while keeping the original priority date, subject to certain restrictions)

• Spouse and children may be able to file I-829 even if not included on the principal investor’s petition.

• Other technical changes.

The above changes do not take in an adjustment to the number of visas allotted every year. The backlog for immigrant investors from Mainland China is still a fear.

Although very doubtful, if Congress does not extend the EB-5 Program many troubles will take place. Congress has not yet addressed the issues that could arise if they do not reauthorize the EB-5 Regional Center Program.

At the moment, the U.S. Department of State (DOS), has released their January 2018 Visa Bulletin, but EB-5 regional center categories for January are listed as “unavailable.” This means that if the program is not extended on December 22, no EB-5 regional center visas would not be issued in January, 2018.
 
It is more likely that the Congress will extend the EB-5 Program for a short period. In this case , Congress could pass a short term continuing resolution (CR) that extends the program without change and gives them time to be of the same mind upon reforms. If Congress does not enact reforms by April, 2018, it is expected that the Department of Homeland Security (DHS) will implement EB-5 regulatory changes.
 
If you are considering immigration through the U.S. EB-5 Immigrant Investor Program, contact our office today to discuss your options with one of our immigration specialists.

For more information on the U.S. EB-5 Immigrant Investor Program, please click here.

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