The EB-5 Regional Center Program will lapse at midnight tonight as Congress will not reach an agreement on reauthorization before that time. Though Senators Chuck Grassley (R-IA) and Patrick Leahy (D-VT) had attempted to fast-track their EB-5 Reform and Integrity Act of 2021 by the program’s expiration date, their request for unanimous consent, which would have allowed the bill to quickly pass, was blocked by Senator Lindsay Graham (R-SC). Congressional negotiations continue, but the outcome and timing of these negotiations are uncertain. In the meantime, U.S. Citizenship and Immigration Services (USCIS) has issued guidance on how the agency will treat Regional Center filings in the interim.
Background on EB-5 program authorization
The EB-5 Regional Center Program, which has never been made permanent, has long been reauthorized annually in one-year increments as part of annual government funding legislation. Earlier this year, however, after the last program expiration, Congress took the unusual step of decoupling program extensions from appropriations legislation. The six-month extension meant that the program would expire midyear unless Congress separately reauthorizes it. This short reauthorization was intended to give Congress a midyear opportunity to make statutory changes to the program, which have long been discussed in the legislature. However, thus far, Congress has been unable to reauthorize the program even in its current form.
The EB-5 Reform and Integrity Act of 2021 would have not only reauthorized the EB-5 Regional Center Program through September 2026, but also would have increased the compliance responsibilities of Regional Centers.
Though the bill will not be fast-tracked, this and other legislation remain under review. Further, EB-5 regional center stakeholders are engaged in vigorous advocacy to urge reauthorization of the program. Fragomen has joined other critical stakeholders in advocating for reauthorization, stressing to congressional leaders the significant economic benefits that the program has brought and continues to bring to the United States.
How will investors be affected by the EB-5 Regional Center Program expiration?
USCIS has issued guidance on how it will treat regional center-related applications and petitions after expiration of the program tonight, and while negotiations for reauthorization of the program continue:
Form I-485: After program expiration, USCIS will continue to receive regional-center affiliated Form I-485 adjustment of status applications, but will place these filings on hold until further notice.
Form I-924: Applications for Regional Center designation on Form I-924 received by USCIS on or after July 1, 2021 will be rejected and any such applications that are pending as of July 1 will be placed on hold until further notice. However, if the application is being filed in order to amend the regional center’s name, organizational structure, ownership, or administration, the application will not be rejected.
Form I-526: Form I-526 immigrant petitions received by USCIS on or after July 1, 2021 will be rejected if they indicate that the petitioner’s investment is associated with an approved regional center. Any such petitions pending with USCIS on July 1 will be placed on hold until further notice.
Requests for evidence (RFEs) and related USCIS notices: For affected Forms I-924 and I-526, USCIS directs stakeholders to respond to any RFE or other notice issued by the agency by the required due date. Though USCIS will not be able to review the response unless the Regional Center Program is reauthorized, the agency must receive a timely response in order to process the application at a later time.
Form I-829: For foreign nationals already in EB-5 conditional permanent resident status, USCIS has confirmed that Form I-829 petitions to remove conditions on that status will not be affected by the expiration of the Regional Center program.
Applicants seeking immigrant visas under the EB-5 Regional Center category from U.S. consulates abroad will also be affected by the changes. After June 30, 2021, unless and until the Regional Center program is reauthorized, the State Department will not issue immigrant visas to those applying at U.S. consulates under the category.
The firm is closely monitoring congressional deliberations concerning the Regional Center Program as well as implementation of the USCIS filing guidelines, and will provide updates as developments occur.