Changes from DHS and/or Congress? RC List Updates

01/11/2017 Update: USCIS published an Advance Notice of Proposed Rulemaking  “EB-5 Immigrant Investor Regional Center Program” (Docket No. USCIS-2016-0008)  and Notice of Proposed Rule-making EB-5 Investor Program Modernization (DHS Docket No. USCIS 2016-0006).

Regulatory Changes

How close are we to getting the revised EB-5 regulations promised by USCIS? My best guess is: pretty close — at least by Spring 2025. The rulemaking process for a federal agency (according to Wikipedia) goes like this:

  1. give advance notice of proposed rulemaking
  2. publish actual proposed regulatory language (“notice of proposed rulemaking” or NPRM) in the Federal Register
  3. public comment period, which may last 30 to 180 days or so
  4. if comments precipitate drastic revisions, a second draft may be published in the Federal Register for further comments
  5. the proposed rule becomes a final rule, with minor modifications and full response to comments submitted by the public
  6. the final rule becomes effective (with most rules becoming effective some time after initial publication to give regulated parties time to come into compliance)

So far, DHS has accomplished Step 1 in this process for new EB-5 regulations, publishing Rule 1615-AC07 in the Office of Management and Budget’s Spring 2015 Rule list (and reposting in Fall 2015 and Spring 2016). The 2015/2016 OMB notice indicates general content areas for revision to EB-5 regulations: create distinct regulations for direct and regional center investors; and make changes to regulations for the designation of Targeted Employment Areas, indirect job creation, the required investment amount, material change’s effect on conditional residency, the regional center designation process, and monitoring for regional center compliance. USCIS held a stakeholder meeting and online feedback session on possible revised regulations in April 2014 and again in April 2016. But that’s all still Step 1, and we have no indication of when the process could progress to Step 2 and beyond. [UPDATES: DHS Secretary Johnson testified on 6/30/2016 that he foresees progressing to Step 2 as early as November 2016. IPO Chief Nicholas Colucci said in the 8/29/2016 EB-5 Stakeholder meeting that his office was actively working on the regulation but had no timeline for publishing it. The Fall 2016 OMB list notice gives a target date of 01/00/2017 for Notice of Proposed Rulemaking]

The entire rulemaking process could theoretically happen within a year, and there’s been plenty of talk about its urgency, but I’m not holding my breath. For context, the regulation dealing with EB-5 petitions approved 1995-1998 (RIN 1615-AA90) has appeared as a proposed rule the OMB agenda biannually since 2003, the proposed regulatory language was finally published in the October 2011 Federal Register, the public comment period was completed in November 2011, and the rule entered the final stage March 2015. It remains to be seen whether the promised new EB-5 regulations can be promulgated in less than thirteen years. We’ve heard since 2014 that USCIS is actively working on them, so two years down, at any rate.

If USCIS drags its feet on regulations, it can also make changes by publishing new policy. For example, you can now provide feedback on a new Interim Policy Memo on the topic (not EB-5 specific, but relevant to EB-5 applications and petitions) of Signatures on Documents Filed with USCIS. (UPDATE: In the 8/29 EB-5 Stakeholder Meeting, IPO reported that they are currently compiling existing policy for the EB-5 chapters for the USCIS Policy Manual, and expect to issue future new policy as amendments to the manual.)

Legislation
How close are we to getting new legislation that affects EB-5? The tidbits and rumors I hear suggest (1) that we’re unlikely to see a substantial reform/reauthorization bill before September 30, considering the few Congressional workdays left and the election, (2) that substantial reform legislation is still in active discussion (Grassley and Leahy staffers met just last week with securities attorneys to discuss a forthcoming edition of the S.1501), (3) that the regional center program will probably get another clean short-term extension beyond September 30, 2016, to give more time for substantial legislation, and (4) that the next short-term extension is likely to be genuinely short, considering that the leaders motivated to insist on urgent program changes have even more ammunition and motivation than they did last year.

The House has a couple new bills with some relevance to EB-5. H.R.5203 – Visa Integrity and Security Act of 2016 would tweak the application and review process for all visa categories (not EB-5-specific, but could affect some EB-5 investors). The EB-5 Insights blog has a summary of key provisions, if you’re interested but don’t want to read the bill. H.R. 5398: Immigration for a Competitive America Act of 2016 doesn’t mention EB-5 but proposes to increase the total number of employment-based visas from 140,000 to 253,000 (+81%), which would effectively increase the EB-5 visa allocation by 81% as well. As of now the bills haven’t gotten far and GovTrack rates them at 0%-3% chance of being enacted, but FYI the proposals are out there.

Regional Center List Updates
Additions to the USCIS Regional Center List, 05/23/2016 to 06/10/2016

  • Deictic Investment Group – California (California)
  • Onefire Healthcare Services, LLC d.b.a. Onefire Regional Center (Oklahoma)
  • Texas First Regional Center, LLC (Texas)
  • Texas Regional Investment Center (Texas): www.texasric.com
  • West Bridge Regional Center, LLC (Texas): www.westbridgeregionalcenter.com
    No longer listed:

  • TriHaven Investment Group Southern California (California)

New Termination

  • Palm Beach Raceway LLC (Florida) Terminated 5/31/2016

About Suzanne (www.lucidtext.com)
Lucid Professional Writing provides writing and editing services for businesses and scholars, and specializes in assisting clients to prepare business plans for filing with U.S. Citizenship and Immigration Services.

4 Responses to Changes from DHS and/or Congress? RC List Updates

  1. Joe Whalen says:

    While “EB-5” is not singled out, there is one EB-5 specific item relating to the “set-aside” for TEAs (item (3) below):

    H.R.5398 – Immigration for a Competitive America Act of 2016
    SEC. 102. INCREASED LIMITS FOR CERTAIN EMPLOYMENT-BASED VISAS.
    Section 203(b) of the Immigration and Nationality Act (8 U.S.C. 1153(b)) is amended—

    (1) in paragraph (3)(B), by striking “10,000” and inserting “15,500”;

    (2) in paragraph (4), by striking “5,000” and inserting “7,750”; and

    (3) in paragraph (5)(B)(i), by striking “3,000” and inserting “4,650”.

    • Yes, thanks for the reminder. So far you’re the only person I’ve seen taking notice of this bill.

      • Susan, what do you then think is the likelihood of EB-5 changes (investment amounts) for direct investment being operational by Jan. 2017? (I am guessing very low but still). What would happen if the Regional Center Program is not reauthorized in Sep.? Will it affect direct investment for EB-5? Finally, are you by any chance an attorney?

      • I am not an attorney, just a business plan writer who takes care to keep up with EB-5 developments on behalf of my clients. It’s not possible for the investment amount to be increased through regulation before January 2017 (not enough time for all the steps to be completed this year). An increase through legislation is possible but unlikely before the end of the year (or so say people who know more than I do), considering the elections. If the regional center program were allowed to lapse in September (but people tell me this is also unlikely), than direct EB-5 would become the only EB-5 option. Direct EB-5 is a permanent program, and the requirements for direct EB-5 will not change unless Congress passes a new law or USCIS enacts new regulations.

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