FAQ #1 – EB-5 Regional Center Program Lapse

This blog post addresses the most commonly asked questions related to the EB-5 Regional Center program lapse on June 30, 2021. The information provided below is correct as of July 1, 2021 and is based on the latest USCIS guidance at the time. Please be aware that it may be superseded by future events.

The American Immigrant Investor Alliance was created by and for EB-5 investors. We believe that, together, we will make our voice heard in the EB-5 legislative process. Sign up for our newsletter on goaiia.org to stay on top of our advocacy progress and EB-5 news.

1. What exactly happened on June 30th?

The EB-5 Regional Center Program has only ever been a temporary program and is subject to periodic reauthorization by U.S. Congress every seven years. Typically, reauthorization has been included in the government’s omnibus spending bill, and hence the program has been ‘automatically’ reauthorized each time a ‘must-pass’ spending bill is passed. In December 2020, the program was decoupled from the spending bill and given an expiry date of June 30, 2021. 

2. Why was the program allowed to expire?

This requires a much longer explanation but suffice it to say Congressional leadership and different factions of the EB-5 industry could not come to an agreement regarding the future of the program. Shortly before the sunset date, Sen. Chuck Grassley brought his EB-5 Reform & Integrity Bill, which would have reauthorized the program, to the Senate, seeking unanimous consent. When this failed, he issued the following: Grassley Unanimous Consent Request on EB-5 

3. When will the Regional Center program be reauthorized? 

The Regional Center program is extremely unlikely to be reauthorized by stand-alone legislation. The most likely outcome is that program reauthorization will be achieved by attaching it to a ‘must-pass’ bill, as has happened previously. At the moment, we cannot definitively say when this will be. Congress is in recess for the Fourth of July holiday and will reconvene in the second week of July. It is possible that language to reauthorize the Regional Center program could be attached to the infrastructure or reconciliation bills being negotiated at the moment. If that fails, the Regional Center program could once more be attached to the omnibus spending bill  which is due to pass by Sept 30 2021, when the next financial year starts. However, given that the Regional Center program has once been decoupled from the government’s spending bill, the uncertainty is significantly higher this time. 

4. What will happen to my pending Immigrant petition?

We recommend you watch this section of our webinar conducted on Day #1 of the EB-5 program lapse.

If you are at any of the following stages of the immigration process, you will be unable to proceed to the next step: 

• Your I-526 is waiting for approval 
• Your I-526 is approved and you are waiting for the petition to be sent to the NVC
• You are filing documents with the NVC 
• You are Documentarily Qualified at the NVC and are waiting for a consular interview 
• Your I-526 is approved and you are preparing to file the I-485 for adjustment of status
• You have a pending I-485 application based on an approved Regional Center I-526 petition 

5. Will my immigration timeline effectively increase?

According to USCIS’s guidelines, existing Regional Center based I-526 applications will be held in abeyance during program lapse. This will most likely cause a backlog of I-526 applications to be processed when the program renews, which translates into longer wait times for applicants.

6. At what stage of the immigration process does the lapse no longer affect me?

The lapse should not affect investors who have been issued a conditional or permanent green card. Direct investors are also unaffected, as it is only the Regional Center part of the EB-5 program that has expired.

7. Any impact on I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) applications?

We do not believe the program lapse will have any effect on I-829 applications, which should be processed independently of the RC authorization status. This position is affirmed by USCIS’s latest guideline: “We will continue to accept and review Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, in the normal course, including those filed on or after July 1, 2021.” 

8. I have heard of consular interviews scheduled for July. Why is that?

Consulates are not always up to date with the latest legislative changes, so it is possible that some consulates will continue to schedule interviews. What can happen is that they can still conduct the interview, but they will not be able to issue a visa until the program is reauthorized. Another possibility that was not uncommon during prior short-term lapses is that consulates may cancel the interview a few days before the scheduled date.

9. How does the lapse affect applicants who have already filed forms I-485, I-765, and I-131 but are still awaiting adjudication?

Based on the July 1, 2021 updated guidelines, USCIS has not confirmed how they will handle pending I-485 applications. The guidance doesn’t include any clarification regarding adjudication of interim benefits for forms I-765 (Employment Authorization Document), I-131 (Advance Parole) or the renewal of interim benefits.  Immigration attorneys have advised that the most likely case will be pending I-485 applications held in abeyance. They have also stated USCIS has stated to US courts during recent mandamus cases that EAD and AP benefits will continue to be adjudicated while I-485 applications are in abeyance. However, it is important to reiterate that USCIS has not officially taken a position on this yet. 

10. Will there be any impact on an approved I-485 filed under the Regional Center program?  

We don’t expect approved I-485s to be affected by the program lapse.

11. I have received the immigrant visa through consular processing but haven’t yet arrived in the U.S. Can I still enter the U.S.? 

We are seeking clarity on this. However, according to a past statement made by the U.S. Customs and Border Protection (CBP), immigrant visas issued prior to the sunset remain valid even when used after the sunset date.

12. What will be the long term impact of the program lapse on my investment return? How will this affect repayment of my capital?  Will I still get my money back if the program lapses permanently? 

These are great questions which we will answer in our upcoming webinars and blogs. Please sign up for our newsletter using the contact form, fill out our advocacy form on goaiia.org, and subscribe to our YouTube channel. It is still early days in the EB-5 program and, while we hope this does not continue for long, we have to be as realistic as possible regarding all possible outcomes.

13. What can I do as an EB-5 investor/stakeholder?

• Become a member – We need investors to advocate for us as we outreach to policymakers. Having representative investors from different regional centers and states will help amplify our voice.
• Donate to us – Working with a political consultancy is very expensive. As a grassroots nonprofit, AIIA relies solely on donations to fight for investors’ interest. Most investors are donating $500 – $1000, but even $100 helps. AIIA is run on a volunteer basis, and all of your donations will be used toward advocacy expenses.
• Volunteer – Join our movement! We are looking for volunteers who can help in various areas, such as public outreach, research and data analysis, media-management, etc. Let us know how you want to help using the volunteer signup form. 
• Spread the word about AIIA – Follow us on Twitter, Facebook, or LinkedIn and retweet/repost our updates. Tell your fellow EB-5 investors about us and our cause. The more people we reach the bigger of an impact we can make! 
• Watch and share our YouTube video and subscribe to our YouTube channel. The webinar embedded below is a good summary of our organization and understanding what we’re doing regarding reauthorization.

DISCLAIMER: 

This is not legal or financial advice. Please consult your immigration and securities attorneys before you derive your own conclusions.