How and why RC program law affects RC petition processing
December 7, 2021 90 Comments
I observe confusion about how and why regional center program expiration affects various stages of the EB-5 process.
What specifically is the “lapsed statutory authority” that USCIS cites as the reason for not accepting regional center I-526 and not acting on pending regional center I-526 or I-485, but continuing to act on I-829 for everyone (in theory)?
What specifically is the “legislative action extending this category” that the Visa Bulletin states as necessary before I5 and R5 visas may be issued overseas, or final action taken on adjustment of status cases?
What all is to blame for the fact that regional center I-526 petitions are currently not being processed and visas not issued, and – therefore – what are the possible options to change the situation?
To help think about these questions, let’s back up and look at the law and the process.
The Law
Statutory authority for the regional center program came from Section 610(b) of Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (Public Law 102-395). You can review the 1993 law (see PDF p 47), or even better this section from USCIS EB-5 training materials that presents the text together with amendments up to 2012. I’ve copied the 1993 language below, with underlines added at key points. This is it: three short paragraphs upon which stand billions of dollars. After the quote, I comment on significant points in the regional center statute.
Quoted from Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 SEC. 610. PILOT IMMIGRATION PROGRAM-
(a) Of the visas otherwise available under section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)), the Secretary of State, together with the Attorney General, shall set aside visas for a pilot program to implement the provisions of such section. Such pilot program shall involve a regional center in the United States for the promotion of economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment.
(b) For purposes of the pilot program established in subsection (a), beginning on October 1, 1992, but no later than October 1, 1993, the Secretary of State, together with the Attorney General, shall set aside 300 visas annually for five years to include such aliens as are eligible for admission under section 203(b)(5) of the Immigration and Nationality Act and this section, as well as spouses or children which are eligible, under the terms of the Immigration and Nationality Act, to accompany or follow to join such aliens.
(c) In determining compliance with section 203(b)(5)(A)(iii) of the Immigration and Nationality Act, and notwithstanding the requirements of 8 CFR 204.6, the Attorney General shall permit aliens admitted under the pilot program described in this section to establish reasonable methodologies for determining the number of jobs created by the pilot program, including such jobs which are estimated to have been created indirectly through revenues generated from increased exports resulting from the pilot program
Discussion of the law
The 1993 law said “shall set aside visas” for a program that “shall involve a regional center.” Details here and there in the law have been amended over time, but note the key point that the regional center program difference is baked into visas. The Visa Bulletin therefore sets specific categories for regional center applicants — I5 and R5 – and stops issuing visas in the I5 and R5 categories whenever the regional center program authorization expires.
The 1993 law specified a time limit on setting aside visas for the regional center program: “five years.” It’s those two little words “five years” that have been replaced over and over again since 1993, in successive laws reauthorizing the regional center program. Reauthorizing legislation started by substituting the original “five years” with new time durations, and eventually moved to providing calendar date deadlines. The most recent reauthorization in 2020 simply said: “Section 610(b) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) shall be applied by substituting ‘June 30, 2021’ for ‘September 30, 2015.’” When no new law appeared to substitute the June 30, 2021 date, then regional center visas became unavailable as of July 1, 2021, and all the processing stages leading up to visa issuance therefore screeched to a halt. At its most basic, regional center program authorization has just meant giving a new expiration date in place of the five-year time limit in the 1993 law. (Here’s my log of reauthorizations to date.)
The 1993 law specified that regional center category visas are for “such aliens as are eligible for admission under section 203(b)(5) of the Immigration and Nationality Act and this section.” The law further specified that the government “shall permit aliens admitted under the pilot program described in this section to establish reasonable methodologies for determining the number of jobs created by the pilot program, including such jobs which are estimated to have been created indirectly.” These words help explain why regional center program authorization is an issue leading up to and at the visa stage, but not a problem for people who have already been admitted to the U.S. on a regional center visa, and now in the Conditional Permanent Resident or I-829 stages.
The key word is “admission” i.e. starting U.S. residence on an EB-5 visa. The 1993 law puts pre-visa regional center investors in a vulnerable position, because it specifies that they must be “eligible for admission” under the core EB-5 program at INA 203(b)(5) AND “this section” i.e. the temporary regional center program authorization. Lawmakers in 1993 surely did not foresee that inefficient USCIS processing and backlogs would insert many many years between (A) investing in the regional center program and (B) becoming eligible for admission to the U.S. Proposed “grandfathering” language now seeks to rectify that vulnerable long gap between A and B by specifying that the investor eligibility can rely throughout the process on the statutory authority that existed at Point A: the time of filing I-526. By simply focusing on eligibility at the time of admission — the visa stage that can be delayed for years into the EB-5 process — the 1993 law provided no such protection.
Meanwhile, the 1993 law does at least effectively lock in/grandfather regional center eligibility from the time of admission on a visa. The government “shall permit aliens admitted under the pilot program described in this section to establish reasonable methodologies for determining the number of jobs created by the pilot program, including such jobs which are estimated to have been created indirectly.” If you were admitted under an I5 or R5 visa, you may then go on to remove conditions on that visa under the regional center rules that apply to that visa, including using economic methodologies to count indirect jobs. The 1993 law permits you to do so because you were admitted to residence under the RC program. Based on the statute, EB-5 policy confirms that even following loss of regional center sponsorship, “The conditional permanent resident investor will continue to have the opportunity to demonstrate compliance with EB-5 program requirements, including through reliance on indirect job creation.”
The Process
The following figure summarizes stages and actions in the EB-5 process. Under the law as described above, the regional center applicant needs the regional center program to stay authorized throughout the grey-shaded stages, such that the applicant stays eligible until the point of being able to cash in on regional center eligibility by getting an I5 or R5 visa at Step 4.
Suggested “grandfathering” language for EB-5 legislation would change this risky scenario by clarifying the law to lock in regional center eligibility based on regional center program authorization status at Step 1. Then future investors could start the process with confidence, knowing that their future eligibility at Step 4 — whenever that time comes — will still follow the rules and authorities that existed at Step 1. The proposed grandfathering language does not merely protect existing applicants (indeed, it’s irrelevant for many past investors if there’s a significant near-term reauthorization), but essential to protect all incoming demand from the future threat of expiring legislation. AIIA’s suggested grandfathering language proposes to amend the INA as follows: “(E) In the case of statutory provisions that establish temporary authority for visas to be made available under paragraph (A) to beneficiaries of such authority, the suspension or termination of such temporary authority shall not suspend or terminate the allocation of visas to such beneficiaries, provided that the petition seeking such allocation was filed when the authority was in effect.”
Note that all regional centers have a self-interest in ensuring that such protective language gets included in any new reauthorization legislation. Future investors will want to avoid the vulnerability to change that’s been on display during the current lapse. Who will commit to a program that’s liable to disappear before it’s needed? Eligibility should be securable at the time an investor commits to the regional center program, and such assurance requires an addition to the law.
Implications
I hope that looking at the regional center statute and contemplating the EB-5 process chart helps to clarify thinking about where we are now, and possible paths forward.
The key lesson that I take: the core problem in regional center program expiration is loss of authority to issue regional center visas and loss of eligibility to receive regional center visas. The current stop to all RC processing leading up to visa issuance is a side effect of that core problem, not the problem itself. Further, the authority to issue RC visas and eligibility for RC visas is based in statute, and thus the solution must be statutory: to get a law passed that renews authority and eligibility for regional center visas. It would not be a solution to simply force USCIS to receive and process regional center I-526 and I-485, and Department of State to process visa applications. If we did that, we could force USCIS and DOS to start denying applications. Because how could agencies possibly approve applications for benefits that don’t currently exist? To quote EB-5 immigration attorney Ron Klasko, from an email kindly sent to me on this topic: “I can advise you of the general legal principle that prevents a government agency from approving a petition or a visa unless there is statutory or regulatory authorization to do so.”
USCIS and Department of State do not make laws or create benefits, they just administer them. By choosing to pause regional center application processing, USCIS and DOS chose to put the regional center patient in a coma, pending a RC program revival by Congress. The regional center processing coma is not the problem in itself – in fact it’s a kindness, to defer the final action of death. In that case, begging or suing USCIS to resume processing RC petitions during an RC program expiration would not be a solution, and indeed would harm any RC applicants who do not want denials.
Congress must pass a law that enables EB-5 visas to be issued in the regional center categories. A law that reauthorizes the regional center program would accomplish that purpose. A reauthorization law will inevitably include many provisions in order to pass, but the minimum necessary content to protect existing investors is an RC program expiration date that’s in the future. Reauthorization legislation is the top priority, and Plan A. If Congress does not act to reauthorize the RC program for the future, Congress should at least pass a law that keeps faith with past investment by allowing applicants who filed I-526 while the regional center program was authorized to remain eligible for regional center visas. The one-sentence grandfathering proposal quoted above could be enough, if a minimal Plan B becomes necessary. So far, I have heard no Plan C path to regional center visa issuance that sounds promising to me. I do not know what litigation argument could work for visas in light of what’s in the law and EB-5 process as reviewed above. The top EB-5 lawyers will try their creative best if necessary, but do not speak optimistically about litigation prospects in lieu of legislative solution. The one RC visa lawsuit attempt I’ve read so far did not make sense to me (except for the couple pages of it that were copied from my blog). But if you can see a solid Plan C option, or note any problems with my analysis, please comment, and make your case in detail. Or email me at suzanne@lucidtext.com.
Updates: I’ll continue to update this final section with other ideas as they occur to me, or suggested in the comments. Lawyers, please weigh in on whether there’s any traction here.
- Regional Center Investor A has a clear and well-documented case that “I would have had a regional center visa by now were it not for egregious government agency processing delay.” Is that an argument that can be taken anywhere or accomplish anything? If so, with whom to pursue it?
- Is the USCIS “material change” policy the primary reason that people who filed I-526 as regional center investors cannot possibly get direct EB-5 visas? If so, is there any hope of or path to a policy-level remedy of changing the material change policy?
EB-5 Updates 
is there any possibility, for the Congress will temporarily allow USCIS and DOS to continue processing visas that have not been enacted into law ?
I am not sure if it would need a new bill as the program is technically dead. Industry probably won’t let that happen. Without the plight and misery of current investors, the industry factions opposing reauthorization (if their demands are not met), will lose their hostages.
Absolutely!
#EB-5.
#SHOW.MUST.GO.ON
I hope Ishaan Khanna and AIIA team with supportive parties, partners will push Grandfathering to be approved for a sake of all current investors. I believe their efforts will be never forgotten. I also believe that they have worked hard and will work hard to help all investors because they do have a good heart and throughly understand other people despair! Investors will compensate them in one way or another if the things will be done!
Hello Suzanne, and thank you so much for your great work and great blog, one the few places of truth in this EB5 world !
I don’t see how we could fight the expiration of the program by a lawsuit, nor the fact that this law has been poorly written and that the expiration should apply to the filling date and not the visa step of the process. And I also know that most lawyers have already said that we should have no hope to gain green card by lawsuit in this matter.
But there is something I will never understand, which is why can’t we sue the government for non doing its job ? isn’t there a more general law which says that government is supposed to act once you paid it to do so ?
I explain : My personal story is that I am an Investor from a non backlogged country doing consular process. I526 petition filed in September 18. Approved in January 21 (took 28 months). But approved petition sent to the department of state 7 months later (!), in august 21, which means a real processing time of the petition of 35 months. Nearly 3 years. So my petition arrived at the National Visa Center… I paid some fees again … only to see my file frozen a few days later by the latest NVC decision to freeze everything related to EB5, as the program had lapsed in June.
My point is : If the US government had worked in a timely manner, I would have had my Visa and my green card a long long time ago. I knew that the program was temporary when I invested, but I did not know that the US government could be so inefficient. I am stuck now not because I engaged in the process too late, but because of insane USCIS processing times.
I read somewhere that there was a law or a regulation which stated that petitions should be approved in max 6 months. This is in fact acknowledged by US courts, as we have seen other investors winning cases against the government with “WOM” to adjucate their petition when the processing times were too long.
So I am still wondering why we can’t fight this point: The US government harmed us by non acting as it was supposed to act in a timely manner. Let’s remind that we have paid USD 3750 to fill a petition which, as you proved it in previous posts, take about 6 hours of processing time.. How can it be that it takes 7 months to send the approved petition to the NVC when you paid $ 3750 for the processing ? Do they really need another 50 cents for the stamp ?
Of course the point I raise do not apply to all investors. Many of them, in fact probably the vast majority of the Chinese people in that unfortunate situation, are stuck at the NVC stage because of the country backlog, and not primarily because of processing times. Also, people who have filled their petition just before the sunset of the program cannot argue this point. But there are still probably several thousands of investors in my situation, who should have gotten their green card if the US government just had done its job. This is so unfair…
totally agree with FCL, my case is also frozen at NVC like you, it’s unfair…
These are very good points, and should fuel the argument to Congress that past regional center investors deserve legislative protection. You did everything right and in good time, and are only stranded now due to obvious and egregious government agency delay: an unquestionable fairness issue. I’m uncertain about litigation, though. I know that it’s possible to sue an agency to do its job, but more doubtful about what you’d technically need: to sue an agency to have done its job, back when you needed it to be done.
(b) Policy
It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application, except that a petition for a nonimmigrant visa under section 1184(c) of this title should be processed not later than 30 days after the filing of the petition.
(Pub. L. 106–313, title II, §202, Oct. 17, 2000, 114 Stat. 1262.)
https://www.govinfo.gov/content/pkg/USCODE-2019-title8/html/USCODE-2019-title8-chap13-subchapII-sec1571.htm
Click to access PLAW-106publ313.pdf
TITLE II—IMMIGRATION SERVICES AND INFRASTRUCTURE IMPROVEMENTS
Sec. 201…
“Sense of” resolutions do not create law, do not require the signature of the President of the United States, and are not enforceable. Only regular bills and joint resolutions create laws.
https://www.thoughtco.com/sense-of-congress-resolutions-3322308
———-
In the United States Congress, non-binding resolutions are frequently titled as a “Sense of Congress” resolution, if both houses pass the measure (a concurrent resolution), or as a “Sense of the Senate” or “Sense of the House” resolution, if the measure is passed by only one house (a simple resolution).
https://en.m.wikipedia.org/wiki/Non-binding_resolution
——-
Its worthless for start any legal action. Your chance is higher that a reauthorization is happening until the bill is dead. And IIUSA is starting to promote already events around the world from Q2, 2022
The same things go through my mind. Also I have had very similar processing time. You are definitely not alone in your thoughts and Reasoning. We should be able to do something.
@Suzanne
If the EB-5 RC law by itself permits only 3,000 visas annually, what is the legal basis for RC petitioners to receive up to 10,000 yearly visas during the periods when the “RC program” is “authorized”?
Can this legal basis be exploited for more general application during this so called ‘lapse/expiration’, so that RC petitioners can continue to be eligible to receive visa quota (be admitted), despite the RC visa set-aside of 3,000 is no longer available?
In addition I’d like to add some more facts. The RC program is no longer a ‘pilot’ program thanks to the amendment of its 2012 reauthorization. And this RC program indeed ‘only’ states it authorizes a 3,000-visa set-aside; utilization of the 10,000 annual visa pool for RC program implicitly should not be subject to its (impertinent) sunset clause.
Thank you in advance for your opinions!
The fact that RC petitioners can and have received well over 3,000 visas annually while the RC program is authorized demonstrates that the RC law’s set-aside provision does not not mean “permits only 3,000 visas annually.” The TEA set-aside in current law is the same: many more than 3,000 TEA category visas have been issued in every full-capacity year. What a set-aside category does is to create a minimum allocation that’s available to a certain category out of the general store if there’s demand in that category. The effect of a certain specified number only kicks in if there’s total demand over 10,000 and over 7,000 of that demand comes from outside the set-aside categories. In that case, the set-aside protects 3,000 visas for the protected category. The situation with country caps is also comparable. The 7% “per-country limit” does not mean that Belgium must take @700 EB-5 visas or China is only permitted 700 EB-5 visas annually. It just protects the possibility of Belgium to demand up to 700 EB-5 visas, regardless of the volume of demand from China.
Thus the issue with the RC law expiration does not concern the specific number attached to the set-aside category, but the very existence of the category. The number has historically been effectively irrelevant; the existence of the category is what has made the difference.
Congress did not indicate that the act of removing the word “pilot” from the program’s description in 2012 (in a law titled “To extend by 3 years the authorization of the EB–5 Regional Center Program”) had any effect on the program’s continuing need for reauthorizing legislation, It was a messaging change, not a functional change. We can see that because if deleting “pilot” in 2012 did have any functional effect, the RC program would not have faced so many sunsets and had to be reauthorized so many times since 2012. (https://www.congress.gov/112/plaws/publ176/PLAW-112publ176.pdf)
Any thoughts? I appreciate the effort to find a crack, but not convinced we’re there yet.
I am wondering if they know something that we do not.
https://iiusa.org/blog/introducing-the-iiusa-eb-5-event-passport-series/?utm_source=feedburner&utm_medium=email
My RC based I829 was approved last month. So yes, USCIS is still adjudicating RC based I829s.
Great news! Congrats EB5Forum!
Congratulation, may I ask how long does it take to have this final decision?
I526 – Feb 2015
I829 – Oct 2019
Congratulations. We are very happy with this good news. Please donate and participa of the Investor Alliance as a sign of hope, thankfulness and respect. Please stay united. The battle isn’t over yet.
Hello, Suzanne,
When I applied my petition in 2016, the perspective was for the process to take more or less 2.5 years.
It was documentarily ready in 2020, and with the consulates closed I had to wait until 2021 to be interviewed.
But the interview happened on 30th July, after the program sunset. So, I’m approved but didn’t get the visa.
The whole process took 5.5 years so far. I had even to file a mandamus suit before the interview was schedule
Do I have any ground for litigation in this case?
IIUSA knows at least how to sell tickets already:
https://www.eventbrite.com/checkout-external?eid=221963497797
Good that the bylaws of IIUSA are allowing a compensation to the Board of Directors for their services.
But they dont know how to solve the issues with the law since more than 25 years?
@Suzanne, am just wondering whether grandfathering by itself is good enough to progress to a green card. If the RC program is not reauthorised, how do I prove that I created jobs unless I actually switch and reinvest in an alternate authorised employment program like the EB-5 Direct job creation path. What I am getting to is that grandfathering alone is not going to be the silver bullet to get to the end goal of residency, and that we will also need guidance on how to invest in job creation going forward. Would love to hear your thoughts. Many thanks in advance!
The entire point and only point of grandfathering legislation is to allow getting a green card based on the regional center rules that applied to the underlying petition as filed, including indirect job creation. Grandfathering language is designed to be and has to be sufficient to accomplish that purpose, or else it’s nothing and worthless. You could ask your immigration lawyer to review AIIA’s suggested grandfathering language, and opine whether it would indeed protect the end of goal of residency in case of program expiration, and whether he/she can suggest any improvements to the language. AIIA has already made a number of revisions based on input from experts, and if more are needed they should be brought up asap. As discussed in the post, the statute and policy officially allow for someone with a regional center visa to go on to count jobs using regional center methods, regardless of regional center program authorization status at the final job-counting moment. Practically, reauthorization is the the ideal since it means your regional center entity stays under USCIS oversight through your sustainment period, and less likely to use lack of new investment as an excuse to pack up and cash in before you can get the records you need for I-829.
Dear Susan,
I respect your writing and agreed that reauthorization or grandfathering is the best way to go. The EB-5 ended six months ago, neither reauthorization nor grandfathering has making any progress in Congress. But some children aged out and some investors are also received notice from their RC for lack of money to repay due to the lapse. With the stalemate continues, more people will likely to be fall into the same situation. The longer, the worse. In that case, what to do if litigation does not work at all? Simply waiting doesn’t mean that things are under control. Because now we all know the reauthorization doesn’t happen is not merely lacking of a vehicle, it is a big fight ongoing and more likely a dead end. What if something still not happen in the first half of the year 2022, what should the investors do? Withdraw or continue to wait for the next year? Can eb5 resurrection in 2023? Any comments? Thanks
I don’t suggest simply waiting, but I don’t think that investors have exhausted their ability to push legislation. If it’s true that reauthorization has not happened thanks to a few regional centers that will not accept the legislation that Senator Grassley and Leahy are ready, willing, and able to help pass, that’s a fact that the 100s (or more likely 1000s) of investors in those obstructive regional centers should know about and be able to make a noise about and influence. Investors have not had as much voice in the process as they should and could have, considering the fiduciary duties owned to them. The stand-alone grandfathering effort is not theoretically impossible, considering the obvious fairness argument and no political downside for Congress (since it’s not creating anything new, just a sentence or two allowing legal benefits in process to complete.) But of course simply lifting the block on reauthorization would be better for everyone. Litigation could get started any time as a hedge against reauthorization timing, if someone suggests an argument that looks worth the expense of trying. Efforts on litigation and reauthorization aren’t necessarily mutually exclusive. But one thing about litigation: regardless of chance to succeed, there’s 100% chance that it takes many years to succeed. For example Zhang v. USCIS, a landmark of EB-5 litigation success, was filed in mid 2015 and got a decision in late 2018. Whereas with reauthorization legislation, the options look to me as if it’s logically/practically either in the next few weeks/months or never.
Hi Suzanne, when you say “ Whereas with reauthorization legislation, the options look to me as if it’s logically/practically either in the next few weeks/months or never.” did you mean if the EB5 RC program were to get reauthorized it has to happen in the next few months or it may never happen ? Thanks
I just think the pressure to get reauthorization done will never be greater than it is today — from here, there can only be less and less of the program to save. Meanwhile, the arguments over reauthorization have been on-going among the same people since at least 2015, and if they aren’t resolved now when the pressure is highest and there’s still some chance for the resolution to do any good, when could they be resolved? There’s no practical limit on the “when,” but theoretically it looks to me like a “now or never” situation.
Thanks Susan, your writing is valuable.
Hi Suzanne,
Great blog! I am glad to hear AILA may push for stand-alone protective legislation and have now included language requiring the DOS to continue issuing visas – which is key. I requested this language be added to the consensus draft; it did not make the initial draft that went to the Hill – but next round. I do not feel hopeful it will get passed as a standalone bill, still the more pressure on Congress, DOS, and USCIS, the better.
BTW I think there is a typo in the legislative text you included because it says 300 visas, not 3000:
the Secretary of State, together with the Attorney General, shall set aside 300 visas annually for five years.
Lulu Gordon EB5 Capital Senior Vice President / General Counsel
Tel: (240) 713-3119 | Mobile: (415) 317-4477 lgordon@eb5capital.com | http://www.eb5capital.com
I appreciate EB5 Capital’s efforts to help keep the process on track and get good legislation passed. Thank you for your your hard work! On the legislative text, I just copied it straight out of the 1993 law, so that’s why it’s lacking the amendments, including the 1997 change from 300 to 3,000. If you have additional thoughts on the post and these big questions, please share! I feel nervous to tackle these things as a non-lawyer, and much appreciate input from the experts.
WOW, you from my RC, glad to see you here 🙂
Thanks Susan.
I fully agree with you that through legislation is the most efficient way to do. And indeed, it is true that put eb5 into coma is the kindness given from USCIS. But that can’t save every investor. The long lapse over six months has created irreparable damage to some. E.g some investors are facing whether to redeploy their fund within one year and now it is closed to the deadline or already passed. They could choose either withdrawal or redeployment which will put them into this crisis like others. Some children are already aged out. This mean that they loss their opportunities forever at least through eb5. And some investors loss their investing fund bc their RC can’t afford the loss caused by this lapsed. With the longer lapse, more people will follow. To these innocent people, it is a humanitarian disaster imposed by this long lapse without any helpful actions taken. When speaking from the perspective of fairness, apparently neither “coma”, reauthorization, nor grandfathering can help these people suffering. what should those investors do? Who or what could help them? Any ideas, Thank you!
Hi Jack,
Could you explain to me what do you meant by “losing their chances to redeploy the fund within 1 year? I am still waiting to submit my i485 (unfortunately due to the lapse) so I am relatively new to this process.
Also can you dumb it down for me what you meant by “investors loss their investing funds since RC cannot afford”. Is this the repayment of $500,000 fund?
You are right. the $500,000 has to be redeployed for qualifying GC.(at risk requirement).
Thanks for explaining. I got my eb5 approval in March 2021. Does that mean I have to submit my i485 by March 2022 to get my fund redeployed?
My priority date became available the moment the program became lapse, so I could not submit anything since then
The “one-year” metric relates to what USCIS considers a “reasonable” amount of time between a project repaying EB-5 funds to the NCE, and the NCE redeploying those funds in a new investment. The timing is unrelated to petition filings. But note that redeployment is only a requirement to support eligibility for a green card. During a program expiration, regional center investors are not eligible for green cards, regardless of redeployment. I can’t imagine USCIS insisting that funds must have been redeployed within one year even during a regional center program expiration, when investors had nothing to protect, and considering that the one-year metric was only a general guideline and not a hard-and-fast requirement to begin with.
For any investors who cannot afford delay and are offered the option to withdraw, that option merits serious consideration. The course of events in 2021 showed that both industry and Congress feel the luxury of time, and are willing to stretch things out as needed to achieve what they want with re-authorization. Redeployment can the right choice for an investor who is confident that the regional center program will be reauthorized, and that a green card will be available to him within an acceptable timeframe despite the visa loss and delays resulting from program lapse. Making a risk assessment on that point merits input from several sources.
Hi Suzzane,
Please excuse me if my questions sound naive to you. My NCE has not relaying the funds back to me. It has only been 3.5 years since I invested, and my project development just finished in the middle of 2019. Does that mean I should not worry about redeployment now?
I don’t think my project is at the stage where it is returning money back to investors yet.
You are correct. “Redeployment” means “deploying funds again,” and only needs to happen when and if funds get repaid from the first deployment (project), and thus available for a second deployment. If you like, you can read the exact policy in the Policy Manual here: https://www.uscis.gov/policy-manual/volume-6-part-g-chapter-2 Page down to the sections about “Deployment of Capital” and “Further Deployment After the Job Creation Requirement is Satisfied”. After you get a green card, the redeployment policy becomes a little different, as described here under the section on Material Change: https://www.uscis.gov/policy-manual/volume-6-part-g-chapter-5
Thank you so much for your reply. I will take a look at the links now. Really hope the reauthorization will be passed this February. I cannot wait to submit my I485. It has been a long journey.
We, all investors, expect IIUSA and all regional centers will support AIIA to push stand-alone grandfathering bill to pass ASAP. That is the smartest way to prevent the collapse of the whole EB-5 system, to save EB-5 reputation and to gain confidence on future investors.
This is a news link about more than one hundred EB-5 Chinese investors entrusting lawyers to file lawsuits!
The following is the English translation:
Our reporter Shang Ying reports from Los Angeles
After the EB-5 Regional Center Investment Immigration Authorization Act expired on June 30 this year, it was originally hoped that when Congress passed the federal interim budget before September 30, the extension would be approved. As the interim budget failed to pass, the extension of the regional center authorization bill waiting for a ride is hopeless and suspended. At present, the first step of the regional center’s EB-5 application, the processing of I-526 approval has all been stopped, including the I-526 approval to start the I-485 application, which has also been discontinued. It directly affects the families of more than 20,000 investment immigration applicants from regional centers.
Last month, some Chinese investors in the regional center’s EB-5 project initiated a lawsuit against the U.S. Department of State, the Department of Homeland Security, the Immigration Service, and the California Immigration Service Center in Los Angeles. The lawyer pointed out that the key point of the EB-5 investor lawsuit is that the authorization of Congress is only for the 3000 priority visas from the EB-5 program dedicated to regional center projects, which were terminated due to unauthorized extension. . However, the overall EB-5 regional center investment immigration plan has not expired. Currently, lawyers represent regional center EB-5 applicants and require the court to make clear judicial interpretation amendments to relevant laws.
In response to the question of whether it is feasible to prosecute the EB-5 law of a regional center that has expired, attorney Michael Chen, one of the investor’s attorneys, clarified that the regional center EB-5 investment immigration law consists of four parts, including Part A , The legal basis for establishing a regional center is not authorized by Congress and there is no deadline; Part B, 3000 visas from the EB-5 program are reserved for regional center project applicants. There is a time limit for this article and the authorization of Congress is also required. Attorney Chen explained that the so-called June 30th Congress did not authorize the arrangement for only 3,000 priority visas, so the arrangement has been suspended; however, the regional center project itself has not expired.
Secondly, the main content of Part C is to distinguish between EB-5 regional center projects and direct investment projects. Because the EB-5 direct project needs to calculate directly hired workers, that is, whether it has created 10 job opportunities. Chen Mao said that the special reason for the regional center project lies in the clause C, which allows the regional center project to calculate indirectly created employment opportunities. This is not included in the so-called congressional mandate. For this reason, the regional center project meets the requirements for applying for I-829, because the prerequisite for applying for I-829 is to create employment opportunities. That is, the reason why the regional center project meets the requirements of job creation during the I-829 review stage is because of the existence of the C clause. This is a legal requirement that began in 1992, and it is not subject to the time limit authorized by Congress. Therefore, Chen Mao likened that the Regional Center Investment Immigration Law does not require Congress to “supply oxygen” to maintain life. He does not think that the Regional Center EB-5 law has expired. It should only be the clause of 3000 visas that was issued in connection with priority arrangements that expired on June 30 and waited for authorization.
The last part D of the regional center’s EB-5 law was added in 2003, and the content is to solve the problems faced after the use of 3000 priority visas. Lawyer Chen said that, in fact, for many years, the number of visas used by the regional center each year far exceeded 3,000. Therefore, after the priority visas are used up, the D clause allows the applicants of the regional center program to continue to use the remaining 7000 unused visas of the EB-5 investment immigration program. This has been done for many years. In this lawsuit, the lawyer requested the State Department and the Immigration Bureau to reopen the regional center EB-5 visa on behalf of the investor, because the authorization of the visa was originally included in the 10,000 EB-5 visas stipulated by the EB-5 law and is not subject to Congress. Authorization restrictions. This is the key point of prosecution.
Attorney Chen also introduced that this case is a multi-plaintiff litigation, similar in effect to a class action. The lawsuit has been filed in the Los Angeles Federal Court earlier, and the law stipulates that there will be a 60-day defense period for suing the federal government as a defendant. This means that in early November, the defendant should have a written reply. Huang Xiaosheng, the lawyer who initiated this litigation, believes that litigation is the most effective solution to the EB-5 investment immigration issue. At present, the defendant has appointed a lawyer in charge of defense in Washington DC. If the number of plaintiffs reaches 60, it will be helpful to start applying for an injunction.
The main points of the success of this litigation mainly require the court to make a clear judicial interpretation of the relevant laws, Mr. Chen emphasized. Because the original text and legislative intent of the EB-5 program is that 3000 visas for EB5 regional center investors require annual authorization, and the immigration benefits of EB5 regional center investment do not require annual authorization from Congress. The second reason is how broad is the extension of the so-called Congress authorization? For investors whose I-526 has been approved, their application for corresponding immigration benefits (485 green card and immigrant visa) should not be stopped. Because when the investor’s I-526 application was approved, Congress had authorized the validity of this authorization should continue until all their immigration application paths were completed, until citizenship was obtained.
After the implementation of the EB-5 Investment Immigration Act, Mr. Chen added that in order to attract investors, a by-law was formulated in 1993 to authorize the regional center. Investors can invest 500,000 in the regional center and create employment opportunities through the regional center. Incentives for regional centers have also been issued. That is, the Congress allocates 3,000 individual quotas each year to the regional center’s EB-5 investment immigration program, but it needs to be postponed every year. He explained that previously, the extension of the regional center project authorization was placed in the annual federal government budget, which was passed by Congress on September 30; but last year the regional center EB-5 authorization plan was taken out of the budget and placed in another The bill, whose expiration date is June 30, therefore terminates the waiting extension.
https://www.singtaousa.com/2021-10-18/%E8%8F%AF%E4%BA%BAeb-5%E8%A8%B4%E8%A8%9F%EF%BC%9A%E5%8D%80%E5%9F%9F%E4%B8%AD%E5%BF%83%E6%8A%95%E8%B3%87%E7%A7%BB%E6%B0%91%E8%A8%88%E5%8A%83%E6%9C%AA%E5%A4%B1%E6%95%88/3701273#page4
I feel and share the pain for all investors – exhausted waiting time. Will this lawsuit only for investors with I-526s have already approved? Still will not apply for any pending I-526.
I feel that stand-alone grandfathering law is still the quickest and easiest way to go. I hope that all investors will stand together and push for that law passed.
Surprisingly no updates from Jeff Campion of Pathways after 11/19…
Do you still remember AAED, how similar are they! Could you forget the date mentioned repeatedly: 9.30, 10.15, 12.3, 12.17… what else do you expect to see him again? Do you still trust someone who broke your heart for so many times?
12.25 Santa!
No… I guess our topic regards the law is a trap to keep us busy. 😝 It contains a lot of “free” work and background information. Some answers/comments are like written by lawyers on behalf of the “commenter”. Finally the congress needs to decide about law or a lawsuit to figure out “how they feel about the moral nowadays”. All doubts and solutions could have been clearly answered by the advocats of the lobbies since months/years. Where is Aaron and Jeff? Busy with the bright future?
Yes, those commenter questions are pre-disclosed and answers/comments are well-rehearsed
“S.831 – EB–5 Reform and Integrity Act of 2021” has only 1 action by the Senate on 03/18/2021: “Read twice and referred to the Committee on the Judiciary”.
It’s nearly 1 YEAR so far for only 1 action!
So what will we expect on Feb 2? Just 1 MONTH to come!
https://www.congress.gov/bill/117th-congress/senate-bill/831/all-actions?overview=closed#tabs
I must have to say that I am becoming less and less hopeful about the prospects of reauthorization, even in 2022. Industry factions are still not truly on the same page and don’t think willing to accept whatever is offered, for the sake of existing investors. There are elements who would let comatose program die, if reauthorization doesn’t happen at their terms.
Industry probably massively overestimated their clout and importance, they have been humbled but not all elements are ready to help resuscitate the comatose patients. Also certain section of the industry benefits from long term lapse, with the options of redeployment of funds at their terms.
Read.
https://mp.weixin.qq.com/s/ShbNM19O2gYVREcQqUgSvA
Does it mean that by then(2/3/2022) no action taken will make this bill completely die?
Do not check S831. Its a trap!
Check HR2901
https://www.congress.gov/bill/117th-congress/house-bill/2901/text
It going forward.
Illegal immigration, fake marriage, EB3 conversion from B1/B2 visa…it’s very easy to get a green card, while legitimate and good-willed investors find themselves in the current situation with a lot of damage. These things make us more and more distrustful of the US, maybe Canada is the more reliable choice.
“…….maybe Canada is the more reliable choice”
Well, well, well……..one for the Canuks!
Can Sen. John Cornyn’s (R-TX), Ranking Member of the Senate Narcotics Caucus, influence Sen. Chuck Grassley?
Let us pray.
Hi Jack,
Could you explain to me why some investors need to redeploy their funds? And what do you meant by saying “some investors already loss their investing funds because RC cannot afford loss”?
I have never seen EB5 investor being exploited as much as I see in the present scenario in the name of rule of law justice & freedom to do business in open and fair way.
https://mp.weixin.qq.com/s/x2gtS-mQf5hUyq6Rs5jw1Q
As predicted: the picture – but where are the senators?
As expected: a lie or a translation mistake but Sen. John Cornyn is NOT Chairman of the Senate Judiciary Committee’s Immigration. https://judiciary.house.gov/subcommittees/subcommittee/?SubcommitteeID=14926
Peter, check this. Cronyn is in many subcommittees, including immigration and citizenship
https://www.judiciary.senate.gov/about/subcommittees/subcommittee-on-border-security-and-immigration
At least… thank you
Now my hope is back
Any news from.the AIIA trip to washington?
Yes, very eye-opening info from meetings with Congressional staff. So far I’ve just heard the highlights as the trip made everyone sick, but be sure to tune into their next newsletter and/or donor call once the guys are recovered enough to talk.
I hope “eye-opening” reference helps investors and not the other way around.
Eye opening means bad news?
It sounds like pay tv. But with a bad chinese spoiler on twitter. Whats their illness? The “virus” did not even have time to incuvate… Can we cure it with a “Donation”-shot? How much time we have left before the AIIA credit card statement arrives?
Peter your tireless messaging against AIIA makes me curious to know more about you, and where you’re coming from. I can’t contact you because the email address you used to register is not valid, but please email me at suzanne@lucidtext.com so we can set up a Zoom or Skype call and get acquainted. Thanks!
Please consider becoming an AIIA member for the quickest updates! They have already released some informal information through their chat group and an e-mail for members is supposed to be sent out soon.
If you prefer not to become a member, keep an eye out for their public newsletter. My understanding is that this will be written later once they’ve had time to have some follow-up conversations with the staffers they have been in contact with.
(Disclaimer: I am just an AIIA member and this is what they’ve told us!)
I agree and encourage people to join AIIA not only for latest updates but also because we current investors need to empower them by joining and supporting AIIA. In my humble opinion, whatever little hope of reauthorization we have is because of AIIA. Congress and EB5 industry have been jerking investors around for months now.
P.S: I too am just an AIIA member.
I’ve got a good business idea for direct EB5 investment. Why not create a rehab for foreign investors who got mentally injured by participating in the regional center EB5 program? I could be a patient in such a facility 😉
Where do I sign?
Not a bad idea! There would be market potential among a number of EB5 service providers and project company principals as well.
Actually, this is a great STORY idea for AIIA
Hello Suzanne,
In the last IIUSA webinar, Mr. Grau said that the industry as a whole was in the same page regarding the new EB5 bill, but watching Ms. Lee webinar, I got the impression that things were not that settled. What is your impression about it? If there is another delay, how will the investors be protected? And last, but not least, is there anyone in the Congress sympathetic to our plight, willing to fight for this protection? After all, our stories reached them by now, I wrote to many senators last week. Or they just don’t care?
AIIA’s report on their Washington trip will be all about this topic, so I’ll defer to that rather than speculating. One important thing to keep in mind: the industry all agreeing about their request to Congress is a very important step, but doesn’t mean a bill gets passed unless Congress can accept the request. In this case, the industry consensus was to agree to ask for a bill that avoids unduly favoring rural/distressed areas and avoids excessive regulation. The person in Congress who most needs to agree to any EB-5 bill request is Senator Leahy, gatekeeper on the appropriations process that’s the only near-term legislation opportunity, and his 30-year track record on EB-5 is to strongly favor rural/distressed areas and implement strong integrity measures in light of a few frauds, particularly the one in his state. The result was predictable. Now that the industry has tried its best on Grassley/Leahy bill alternative, I trust that people will re-group and think about what’s practically possible in 2022, where appropriations remains the best/only opportunity for reauthorization to happen, and Leahy remains the gatekeeper. My hope for 2022 is that industry will recognize the terrible and soon-to-be-compounding cost of delay, and agree to request and allow what Leahy is known to demand of reauthorization legislation.
Does that mean that the grandfathering efforts have failed?
The grandfathering effort is on-going, focused on getting buy-in. I think the main lesson of 2021 is that no EB-5 legislation can get passed if it lacks buy-in from someone with the power to block it. Grassley/Leahy tried to push a bill drafted without input from most regional centers, and industry stalled it. The industry rallied around an alternate bill with different priorities, hoping to work around G/L, and Leahy stalled it. A grandfathering-only bill has a chance if it manages to convince all sides that it offers a solution. And I think it has a case, at least. For industry, it could offer the sole potential interim solution to forestall investor revolt while buying more time until politics allow for the desired reauthorization bill. (EB5IC’s game plan for 2021 had been to get another short-term reauthorization as an interim, but Congress has firmly and repeatedly shot down that interim option since December 2020.) For reform-minded Congressmen, interim grandfathering-only language could offer a way to be responsible and obviously simply fair to the past, prevent the impending past-investor-revolt bloodbath that would damage US reputation, the legacy of Leahy and others in EB-5, and existing EB-5-contingent economic activity in their districts. While still allowing the Congressmen to hold firm to the line that regional center business as usual cannot continue, and not one more regional center dollar can be collected unless and until strong reforms are implemented with full-blown reauthorization legislation. These are my great ideas, but haven’t occurred to everyone, General buy-in on grandfathering doesn’t exist yet, which doesn’t mean failure yet, but does mean a long PR road.
🙏
Hi Suzanne,
What will you expect about the reauthorization progress before new year holiday?
Thank you!
I do hope that industry negotiators will do some good thinking over Christmas. I have no reason to expect action from Congress any time soon, and certainly not over the holidays.
It is a glorious +12C day. I was walking my dog. A little bird chirping in a tree told me that something very positive is coming after Feb.
Why after February? And did the birdie tell you how long after February?
let us know the miracle
It’s a lovely snowy day, I’m at my desk, and if I hear one more irresponsibly vague hint about reauthorization something bad’s going to happen to my teacup. There’s been too much of this in 2021! Get thee away from me, little birds! If you have a fact-based prediction to share, please come straight out with it, including detail and sources. Otherwise, no more throwaway comments.
Emailed you.
And the rest of us? Please the suspense is to much.
Veedster was just sharing a little good cheer from his RC, which is seasonally appropriate. The prediction is the one positive prediction available at this point: that reauthorization will be attached to FY2022 appropriations, with appropriations likely to pass at least after February, if not by February. There’s no new certainty or assurance that such will happen, but it remains the hope to hold out for and to work toward.
Hello veedster,
Hello Suzanne,
Is that mean: it is not a standalone bill (S.831 bill). It is still a part of the budget bill like it did many years ago, correct?
Thanks.