RC Program Reauthorization (CR to 12/22/2017)

Updates:

• 12/8: H.J. Res 123 has been signed by the President and is now P.L. 115-90. Now we wait for legislation that will authorize the regional center program past December 22, 2017.
• 12/7: A continuing resolution through December 22 passed the House and Senate today, and the President is expected to sign it. H.J. Res 123 is a “clean” extension, meaning that it simply extends the deadline for previous funding and authorities (including the regional center program) without changes.
• 12/7: Regional center program authorization is still waiting on Congress to manage a Continuing Resolution that would extend current government funding and associated authorities past December 8. Washington continues to fight and risk shutdown. If by chance current government funding and the regional center program sunset on 12/8, what will happen to EB-5 investors? The impact will not be too painful so long as the lapse is temporary. Judging from past history, the Department of State will change EB-5 regional center visa categories from “Current” to “Unavailable” in the Visa Bulletin, and pause issuing visas to RC investors until the RC program is authorized again, returning to business as usual.  USCIS has reportedly prepared “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. I’m guessing that if the lapse appears temporary/unintentional, then IPO will probably also just hold off on new RC petition approvals until the program regains authorization. And as another reminder: EB-5 itself is a permanent program and not facing a sunset; direct EB-5 petitions and applications can continue as usual regardless of RC program authorization.
• 12/5: Senator Grassley and Senator Cornyn — two people who have worked on EB-5 legislation in the past — today announced a new bill that would address a number of immigration issues but apparently not EB-5.  S.2192 “The Security, Enforcement, and Compassion United in Reform Efforts (SECURE) Act of 2017” is about security and enforcement, not about compassion or unity, and not concerned with EB-5 (though it would give permanent status to E-Verify, a temporary program historically reauthorized with the regional center program).
• 12/5: The Hill notes that immigration is in the spotlight as discussions continue over a series of continuing resolutions that would extend current government funding to 12/22/2017, and then again to January or February next year. But the contentious issues are Delayed Action for Childhood Arrivals and border security; no one’s arguing about EB-5 so far.
• 12/4: It looks as if there will be an extension to December 22 (or possibly into January), to give Congress more time to come up with a new funding bill.

Original 11/29 post: EB-5 is permanent, but the EB-5 regional center program faces another sunset date. The RC program’s current authorization is tied to a continuing appropriations act that expires next week Friday, December 8. Sabers are rattling in Washington over the next funding bill, and we may be in for another short-term resolution while our representatives get things figured out. EB-5 hardly rates in the scheme of significant and controversial issues facing Congress now, and I don’t hear anyone speaking out about it. I expect we’ll see (1) a new appropriations bill or continuing resolution next week that includes clean extension to the RC program for the bill’s duration (since that’s been the pattern for two years, and the default option for a Congress busy with other matters); or (2) limited EB-5 program changes crafted by/for the few people who spend most on EB-5 lobbying, slipped quietly and at the last minute into a larger bill to facilitate passage and forestall review and criticism from a broader base of interests. I do not think the regional center program will be terminated, or omitted on purpose from the next appropriations bill. Termination calls have never been very loud or widespread, and termination would also take time and attention from Congress. However, the reauthorization picture is not pretty. The RC program has received seven short-term extensions in the past two years. Congress hasn’t taken positive action on EB-5 since 2012. A program with billions of dollars on the line deserves more stability, attention, and enthusiasm.

Chart notes: The PL numbers identify the public laws that contain regional center program authorization. Each opaque blue bar begins with the date of PL enactment and ends with the end of RC authorization in that PL. The light blue shading reflects the fact that the first three reauthorizations just extended the original authorization (from five years to seven, then ten, then fifteen years). If anyone knows how to fill in the authorization gaps in my chart before 2008, please email me the missing PL numbers.