Looking toward RC program reauthorization (with updates)
September 5, 2016 12 Comments
UPDATES:
- 9/28-29: H.R. 5325 – Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2017, and Zika Response and Preparedness Act passed the House and Senate, and has been signed by the President. It effectively extends the RC program through December 9, 2016.
- 9/22: IIUSA reported on 9/22 that “Today, Senate Majority Leader Mitch McConnell filed a Continuing Resolution (CR) that would extend federal funding, and the EB-5 Regional Center Program, through December 9, 2016.” We may start our short sigh of relief, though Senator Leahy and Senator Grassley are not pleased.
- 9/21: Last night the Senate took another step toward agreement on a continuing resolution that would fund the government through December 9. I’ll continue to monitor thehill.com, and will report if I hear anything about short-term regional center program extension being included in the spending bill.
- 9/15: You can now visit Congress.gov to read H.R. 5992 American Job Creation and Investment Promotion Reform Act of 2016. Sponsor Bob Goodlatte and co-sponsor John Conyers have yet to make press release on this bill (but the energetic Chuck Grassley has a flurry of EB-5 statements on the House bill, the GAO report, foreign involvement in EB-5, and reauthorization). I have a post with commentary.
- 9/13: An entry for H.R. 5992 American Job Creation and Investment Promotion Reform Act of 2016 has been created at congress.gov.
You can watch live stream of a Judiciary Committee meeting on 9/14 8-11 am EST titled Markup of: The “American Job Creation and Investment Promotion Reform Act”; HR 5982, the “Midnight Rules Relief Act”; and, HR 5801, the “Protect and Grow American Jobs Act.”Update: The EB-5 bill was removed from the agenda for the 9/14 markup meeting, and has not been rescheduled. - 9/12: Senate Majority leader Mitch McConnell expects to move forward this week on a continuing resolution through December 9, and Senate Republican #2 John Cornyn said he thinks that the continuing resolution will include a regional center program extension.
— Original 9/5 Post —
Congress goes back to work tomorrow, and the EB-5 regional center program needs to be reauthorized by its next sunset date of September 30, 2016. What will happen over the next few days? Will the regional center program be temporarily extended as is, significantly changed, or left to expire? Here’s what I hear*:
- The most likely scenario is for short-term RC program authorization to be included (just like last year) in a Continuing Resolution (CR) – the omnibus spending package that will need to be passed by 9/30 to keep the government funded. At least, industry groups are pushing for this to happen, realizing that substantial EB-5 legislation is very unlikely to be hammered out before 9/30. As a rider on the spending bill, the RC program would be extended (likely, as is) for the duration of the CR (which might be to the end of 2016 or through the lame-duck session of Congress into 2017). You can follow what’s happening with the CR generally at TheHill.com and other news sources. A short-term extension would give Congress and the industry more time to negotiate long-term reform and reauthorization (and more time to continue deferring hard decisions).
- The House and Senate Judiciary Committees have been working on EB-5 legislation, and IIUSA expects to see a new bill soon, even as early as this week. The draft legislation has been kept confidential so far, but is expected to follow the framework of the S.1501 family of bills, with modifications. A longed-for provision that the bill will likely NOT include: an increase to the number of EB-5 visas. Increasing EB-5 visa numbers would require either increasing the total quota of immigrants to the U.S. or taking numbers from other immigrant categories – both very difficult politically, and unlikely to happen except in the context of comprehensive immigration reform (which is unlikely in the current economy and political climate). A much-feared provision that the bill might include: retroactive application. Retroactivity would be a practical disaster for the industry and for USCIS, but tempts Congressional leaders who want their changes to take affect soon (and not have to wait until the 6+ year backlog has worked its way through the system). I’m sure that advocacy groups are ready with their arguments for why retroactivity cannot be part of a bill designed to ensure the long-term health of the RC program. A contentious provision likely to feature in the new legislation: targeted employment area reform. This year’s House and Senate Judiciary Committee hearings on EB-5 focused on TEA issues. Non-controversial content that the bill is likely to include: integrity measures designed to discourage bad actors. Most stakeholders are ready to agree about that. But in any case, I don’t hear anyone predicting that a substantial EB-5 bill introduced this month might also be passed this month. The bill would give us something to discuss (in the breathing space we hope will be provided by another short-term extension), and its ultimate fate could vary depending on who controls Congress and the White House next year.
- I have not heard anyone working in EB-5 advocacy predict that Congress will let the RC program expire at the end of this month. The industry expects reauthorization — at least a short-term one. However, I don’t hear people making very confident predictions about what will happen. Last year’s process surprised many insiders, and we can’t rule out surprises this year.
- And just as a reminder: EB-5 itself is a permanent program and not hanging in the balance – only the regional center program is up for reauthorization.
*My sources are private conversations, a 9/2 IIUSA Advocacy Alert emailed by Peter Joseph to IIUSA members, a 9/1 post by Mintz Levin, and an 8/30 ILW webinar with Laura Reiff (EB-5 Coalition), Robert Divine, and Angelo Paparelli.
EB-5 Updates 
Seems as if a very select few in the industry are dictating changes. The TEA policy has been completely corrupted by these people. You want to tell me the effective unemployment rate in Manhattan is above 150% the national average? Jerrymandering at its worst.
Jeff, I completely understand your concern about TEA policy. But, just to your question on Manhattan unemployment rate, I believe the TEA you are referring is claiming that the construction workers employed by the projects are from TEA areas. In other words, these projects located are in Manhattan are providing employment to people from higher unemployment areas, and thus satisfying TEA requirements.
I completely understand that this is quite subjective, and project developers derive their benefits to fit through this logic. However, it doesn’t seem completely wrong to me. I would rather have sufficient checks, to ensure that employment was indeed sourced from high unemployment areas.
Disclaimer: I am not associated with any project in Manhattan, or any EB-5 project(s) whatsoever. I am planning to start one (non-RC, non-TEA) for my family business, and just trying to understand the details at this stage.
Hi Suzanne – A very stupid question. If House does not approve the short term/long term extension of the EB5 program, would all the pending I-526 applications be returned back or what would happen if such a situation were to occur ?
This is an important question without, so far as I know, a clear answer. In the 4/25/2016 stakeholder meeting, IPO Chief Colucci said that they were preparing “what if” guidance for two sunset scenarios: if the Regional Center program lapses but Congress apparently intends to reauthorize it, or if Congress indicates its desire to end the program. But we don’t know the content of this guidance yet. And keep in mind the EB-5 itself is a permanent program — it’s just the regional center aspect that’s up for reauthorization.
“EB-5 itself is a permanent program — it’s just the regional center aspect that’s up for reauthorization.” – What would this mean to the I-526 applications already filed based on this statement ? I do not understand the difference when you said EB5 stays but RC program requires re-authorization.
I-526 petitions based on direct (non-regional center) EB-5 investments will not be affected if the RC program is allowed to lapse. I-526 petitions that were filed based on regional center investments, but that are so structured that they could also qualify outside the RC program, may also be able to progress unhindered. It’s an open question how investors at various stages of the immigration process would be treated if their petitions only work as RC investments, and the RC program disappears. We hope that question never has to be answered. You may also find this post helpful https://blog.lucidtext.com/2016/01/04/the-basics-direct-and-regional-center-eb-5-comparison/
Hi Suzanne, has there been any guidance for those (like myself) that are in the US on a conditional green card and will file I829 next year if the program disappears? I guess the IPO would still exist, but they may not be able to process the application? Thx
Here’s what I know: (1) USCIS will continue to process EB-5 petitions whether or not the RC program is extended, since EB-5 is a permanent program, (2) USCIS hasn’t released any “what if” guidance for if the RC program isn’t renewed, but has said they are working on such guidance, in case it’s needed, and (3) USCIS material change policy allows (in theory) for material changes to occur after a petitioner has achieved conditional permanent residence. I guess, therefore, that if the RC program disappears, USCIS guidance will offer you — if anyone — a path to proceed to I-829, since you’re in the period when material changes can be accepted. But I hope and trust that Congress is very unlikely to kill the RC program, and we won’t have to discover what would happen.
Thank you!
Hi Suzanne, I understand that Direct (non-RC) investment side of EB-5 program is permanent and will not be affected by the current extension. But, would there be any effect on TEA qualification requirements for Direct projects? Also, there are bills or proposals to change the TEA qualification requirements in future. In case those changes get approved, what would happen to those petitions (under TEA) that are already filled. Will they need to satisfy new TEA requirements, or they shall be grandfathered. Whats your thought?
Thanks for your comments Archit. Direct EB-5 does not need to be reauthorized, but it is subject to change. Both USCIS and Congress have talked about changing the TEA qualification requirements and the minimum investment thresholds, and such changes would equally affect direct and regional center investors. If USCIS makes the changes, they will be forward-looking (just affecting petitions filed after the changes take effect). Some Congressional proposals have threatened a level of retroactive application, but this is very unpopular. It remains to be seen which proposed changes will actually become reality.
Thanks Suzanne for such a detailed answer.