Regional center program authorization and USCIS stabilization

Today begins Fiscal Year 2021. The good news is that the government remains funded and the regional center program remains authorized at least until December 11, 2020 thanks to the H.R.8337 –  Continuing Appropriations Act, 2021 and Other Extensions Act signed early this morning by President Trump. Assuredly no one in government spared a thought for EB-5 this year. The regional center program regularly gets extended as part of the appropriations process unless someone goes out of the way to change it. Such out-of-the-way effort is unlikely considering other issues competing for attention in Washington, and considering that USCIS already accomplished by regulation the major “reforms” that previously motivated EB-5 legislation. Regional center program authorization might be drama-free, these days, if only the appropriations process were drama-free. My chart of regional center authorizations since 2016 does not reflect disputes about regional center authorization, but rather repeated breakdowns in the overall effort to keep the government funded. Each of the PLs in the chart represents an appropriations act or a continuing resolution on appropriations.

Under normal circumstances, we’d be starting FY2021 with funding for FY2021. As it is, we have a continuing resolution that extends the deadline on FY2020 appropriations for another few months, at which time Congress may manage a funding bill through September 2021 – or more likely, another continuing resolution or two. Meanwhile, I don’t expect legislative changes specific to EB-5 any time soon. (FYI this July 2020 IIUSA webinar gave a very interesting look behind the scenes of EB-5 advocacy for long-term authorization and program improvements, and insight into the lack of results.)

In addition to extension of regional center program authorization (in Division A on p 2 – see my Washington updates page for specific language if you’re interested), H.R.8337 includes the Emergency Stopgap USCIS Stabilization Act (in Section 2 Division D Title I, starting on p. 30). This piece of legislation cleverly responds to USCIS’s request for a Congressional bailout by calling on USCIS to raise funds the way it’s supposed to: by collecting fees for services. I avoided talking about this before it was passed, because the legislation could’ve been controversial.  USCIS is apparently trying to get away from providing services to immigrants, and would prefer to be funded by the American taxpayer. The Emergency Stopgap USCIS Stabilization Act authorizes USCIS to sell immigrants a new product at an increased price; specifically, authorizing USCIS to expand and increase the fee for premium processing.  The previous law at 8 U.S.C. 1356(u) had generally authorized USCIS to collect a premium fee of $1,000 for “employment-based petitions and applications.” The Emergency Stopgap USCIS Stabilization Act gives a more specific list of authorized benefit types (including specifically name-checking EB-1, EB-2, and EB-3 through the reference to “aliens described in paragraph (1), (2), or (3) of section 203(b)”), and raises the authorized fee to $2,500. EB-5 is not specifically mentioned in the new law, but also not excluded from premium processing by the original law. USCIS would apparently not need additional authorization from Congress to offer premium processing for EB-5, which falls under the long-authorized category of “employment-based petitions and applications.” However, the long-standing and likely-to-continue barrier in EB-5’s case has been USCIS, which has repeatedly declined to offer premium processing for I-526, I-924, or I-829. (For a recent example, see p. 6 of Sarah Kendall’s remarks at the October 29, 2019 IIUSA industry forum.) USCIS must guess that 99.9% of EB-5 applicants would take the service if offered, making the service difficult to deliver.

I’ll be very interested to see how USCIS responds to this legislation. The new law authorizes but does not compel USCIS to expand and raise fees for a popular discretionary service. Will USCIS actually do this for the sake of budget-stabilizing new fee revenue? Or will the agency continue to sit back and not offer fee-generating services while still complaining to Congress about budgetary problems? Just this week, USCIS posted another statement on budget issues, this time responding to a preliminary injunction enjoining the new fee rule that would have taken effect and raised fees across form types starting October 2, 2020.

My favorite part of the Emergency Stopgap USCIS Stabilization Act is this paragraph at the end, with the welcome title “reporting requirements.”

SEC. 4103. REPORTING REQUIREMENTS.
(a) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall provide to the appropriate Committees a 5-year plan, including projected cost estimates, procurement strategies, and a project schedule with milestones, to accomplish each of the following:
(1) Establish electronic filing procedures for all applications and petitions for immigration benefits.
(2) Accept electronic payment of fees at all filing locations.
(3) Issue correspondence, including decisions, requests for evidence, and notices of intent to deny, to immigration benefit requestors electronically.
(4) Improve processing times for all immigration and naturalization benefit requests.