Countdown to Reauthorization/Immigration Changes

January 19
Congress lost its bet and failed to pass a new funding bill by midnight. But “lawmakers are believed to be negotiating a days-long extension that could be approved quickly.” In the meantime, the regional center program is on hold, and regional center-associated petitions and applications won’t advance until Congress takes action.

January 18-19
The Hill has a new article every few minutes on the likelihood that Congress will or won’t agree on time to the CR extending current funding and associated authorities (including RC program authorization) into February. So much drama. I expect that the CR will pass by 11:59 pm on Friday, assuming that our lawmakers have much to gain from speaking out against the CR, and more lose from the shutdown that would result from not voting for it in the end. But we shall see. Just in case, Klasko Law comments on effects of a potential government shutdown on immigration processing and programs and IIUSA explains Possible Government Shutdown: What it Means for the EB-5 Regional Center Program.

January 16
House Appropriations Chairman Rodney Frelinghuysen today introduced legislation (H.J.Res 125) to maintain current funding for federal operations and prevent a government shutdown. The Continuing Resolution (CR) is a stop-gap measure that will extend government funding through February 16, 2018.
There’s nothing in the text of H.J.Res 125 to prevent regional center program authorization from being extended with other authorities tied to current funding. But we’ll see whether Congress can manage to agree long enough to pass the CR and avoid a shutdown. The White House supports the CR, at least.

January 15
No indication yet that Washington is near compromise on new immigration legislation. A Continuing Resolution of current funding and authorities to February 16 continues to look likely. In honor of Dr. Martin Luther King Jr. Day today, I quote President Trump making an important point:

Today, we celebrate Dr. King for standing up for the self-evident truth Americans hold so dear, that no matter what the color of our skin or the place of our birth, we are all created equal by God.

This is not the belief evident in the current immigration reform discussion, which looks more like this:

We hold these truths to be self-evident, that all men are not created equal, that they are endowed by their nationalities with certain inalienable characteristics, that among these are propensity to violence, noxious ideology, inability to assimilate, and failure in the pursuit of property. — That to secure against such characteristics inherent in certain nations and their nationals, immigration policy is instituted among Us, to effect Our Safety and Happiness by erecting barriers against threats embodied in Them, and screening Them by the color of their passports in lieu of the content of their character.

We miss you, Dr. King!

January 11 post
Some dates to keep in mind as we wonder what will happen next with EB-5:

  • January 19, 2018: The next regional center program sunset date (and the deadline for a new funding bill that some hoped to make a vehicle for sweeping new immigration legislation). It’s looking likely that this deadline will be pushed back a few weeks, however, with another continuing resolution.
  • February 2018: The date indicated for final action on new EB-5 regulations (with provisions including drastic increase to the EB-5 investment amount)
  • February 16, 2018: Possible next regional center program sunset date, if Congress fails to pass a new funding bill in January, and instead defers the funding and immigration fight with a continuing resolution  (or some speculate the CR could go into March)
  • March 5, 2018: The date DACA protections are slated to end, and thus the date Congress is pushing to beat in passing a big immigration bill
  • April 2018: The possible effective date for new EB-5 regulations, assuming that the rule is finalized in February with an effective date after 60 days (as ILW rumors)

The race is on for EB-5 legislation, with pressure from sunset dates and the need to forestall unwelcome regulations. Washington is actually talking about comprehensive immigration reform, including reshuffling visa numbers. But I haven’t heard EB-5 mentioned once, for good or ill, anywhere, by anyone, in recent immigration discussion. The left is for DACA; the right is for border security and against diversity visas and chain migration. Immigrant investment doesn’t fit with any side’s talking points. I hope that Congress privately remembers EB-5, because we really need action from them: to give the regional center program a longer-term authorization, to enact program changes better than what would come with new regulations, and to realize program potential by freeing up more visas for EB-5.

If broad-based immigration legislation happens soon, what will it include and how will it affect EB-5? We have a few hints, but nothing definitive yet. This week President Trump hosted a bipartisan and bicameral meeting on immigration reform that concluded (reportedly) with “an agreement to negotiate legislation that accomplishes critically needed reforms in four high-priority areas: border security, chain migration, the visa lottery, and the Deferred Action for Childhood Arrivals policy.”  (As an aside, I recommend the White House transcript of the meeting. It’s not especially informative, but an amazing artifact. If Aristophanes or Alexievich set out to write Washington today, I doubt they could beat this straight record of the January 9 Cabinet Room scene.)  Yesterday House Judiciary Chairman Bob Goodlatte introduced H.R. 4760 Securing America’s Future Act, which proposes sweeping changes in line with President Trump’s immigration priorities. The bill includes nothing that would directly affect EB-5, so far as I can tell. (The Immigrant Investor Pilot Program gets a name check, but only in context of a technical amendment that renumbers a subsection. No mention of program authorization or any EB-5 changes. H.R. 4760 proposes to increase employment-based visa numbers, but EB-5 wouldn’t benefit because the bill would change its allocation from 7.1% of the total to a flat 9,940 visas annually, regardless of the worldwide level. The bill fiddles with per-country limits for family-based visas, but not for employment-based visas.)  Meanwhile, the Senate is still trying to come up with a competitive immigration deal that’s more passable by Congress while still signable by the President. I’ll report on details when available, and also hope that advocacy people will eventually share what’s happening with EB-5 on the ground. (Update: IIUSA has published an Industry Special Report, and Senator Graham has posted summary provisions of the Senate’s Immigration Reform Act of 2018. The summary mentions nothing that would affect EB-5.)

About Suzanne (www.lucidtext.com)
Suzanne Lazicki is a business plan writer, EB-5 expert, and founder of Lucid Professional Writing.

17 Responses to Countdown to Reauthorization/Immigration Changes

  1. James C says:

    Thank you for the update!

  2. Jeff says:

    The program needs to sunset and be completely revamped. Too much fraud. More so than legitimate projects.

  3. ebeefive says:

    I have a question, which I can’t seem to find the answer for. If someone has applied for i-526 with a RC in 2017, and the RC program sunsets in 2018, what happens to the pending i-526?
    Does it still get considered in the old system or revoked for the new system?
    (Also, the Feb 2018 Visa Bulletin still shows “U” (Unavailable) for RC.)

  4. Rohit says:

    Hi Suzanne,

    I am from India and lots of EB5 RC marketing persons are roaming around these days yo market their projects. They have convinced me to make investments in those projects. I am still not sure about next step. Can USCIS increase investment amount after I have filed petition?

    Or should I wait for clarity to come on this issue

    • If USCIS increases the investment amount, the change will only apply to petitions filed after a future effective date. If Congress changes the investment amount, they could make the change apply retroactively to already-filed petitions, but most likely it would also have a future effective date. But keep in mind that if changes happen,the future effective date may be soon. Lawyers often take at least a month to finalize and file I-526 paperwork, so consider that when strategizing about investment choice and timing. Also, if by chance Congress doesn’t extend the regional center program, that will effect already-filed petitions.

      • Rohit says:

        Thanks

      • Dilip says:

        Hi Suzanne,

        Thanks for the updates and the great blog in general.

        You said: “if by chance Congress doesn’t extend the regional center program, that will effect already-filed petitions.” Does this mean that if the Congress does not extend the whole concept of investing through regional centers, then the several thousand I-526 applications will no longer be valid? What happens then?

      • The USCIS Policy Manual provides that “Changes that are considered material that occur after the filing of an immigrant investor petition will result in the investor’s ineligibility if the investor has not obtained conditional permanent resident status” and “the termination of a regional center associated with a regional center immigrant investor’s Form I-526 petition constitutes a material change to the petition” (6 USCIS-PM G Chapter 4 (C)). If the regional center program is not reauthorized, effectively terminating all regional centers, then all regional center Form I-526 would become ineligible, under current policy. However, if Congress makes a positive decision to terminate the RC program, the legislation (or USCIS policy in response) might include some provision to protect past investors, such as priority date protection. Or it might not — I wouldn’t depend on that. If the RC program just becomes temporarily unauthorized — not as positive choice to terminate but incidental to failure to pass a new funding bill on time, then I’d expect petitions to just temporarily go on hold while waiting for Congress to act.

  5. Dilip says:

    Thanks for your clarification in response to my question. If the whole RC program gets terminated, and along with it every RC, then I guess it will boil down to two things: (a) whether the US authorities will view it as inherently unfair to investors who have already committed billions of dollars based on the existing law and policy, and (b) how the courts would weigh the interests of the waiting investors against such a termination.

    • I agree. The unfairness is so obvious and of such magnitude that it should be avoided somehow. The most ready option is to keep reauthorizing the RC program. I think the billions already invested are an important part of the momentum for reauthorization.

  6. Goutham says:

    Seeing that it seems very likely that the CR wont go through the senate, that means that the EB5 RC program will become unauthorized too correct ? What happens to applicants (like me) whose petition has already been approved by USCIS, has gone through NVC processing and is waiting to hear about an interview date ?

    • If the CR doesn’t pass, you and the State Department will have to wait until there is new legislation to reauthorize the RC program. When that happens, the State Department can go back to scheduling visa interviews for regional-center-associated applications. NVC won’t issue new RC visas or schedule RC visa interviews in the interim, but also won’t start tearing up applications or anything while waiting for Congress to act.

  7. oms says:

    Hi Suzanne, thank you for updating us. My visa interview just happened yesterday and the officer said my visa will be issued in a week. My passport is at the Embassy now. What will happen then as the visa category I5 is not available as of now? Will my passport return with a denial letter or will be hold?

    I’m really exhausted because of this visa program. Since I applied two years ago, the short extensions made us nervous and now we’re facing with it. I totally regret.

    • I am sorry your hard experience! The state department says that they will continue to provide consular services during a government shutdown (http://thehill.com/policy/international/369773-state-department-issues-guidance-for-potential-shutdown). There’s no reason that your passport should return with a denial unless Congress eventually makes a positive decision to terminate the regional center program (but no one’s suggested that) — at worst your passport will be held for a visa number if one wasn’t assigned yesterday. Congress is in session today under a lot of pressure to pass a new bill, so I don’t expect the hold to be long. The last shutdown in October 2013 lasted 16 days, but then there was some political benefit then to extending the shutdown.

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