The EB-5 Regional Center program is facing reauthorization in June 2021. This has resulted in some uncertainty for current and future clients. Although we do not predict issues for people who file before June 30, there are ways to mitigate your risk:
1. If you are a D&A client, your case was recently approved and you reside outside of the US, we have already contacted the EB-5 unit at USCIS asking them to expedite the transfer of your file to the NVC so that visa processing can begin as soon as possible
2. If your case was recently approved and you live in the US, we should file your Adjustment of Status application as soon as possible
3. If your Form I-526 petition is still pending, you may wish to consider a Writ of Mandamus (more on this below)
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Background to Current EB-5 Situation
The EB-5 Regional Center program is currently authorized on a temporary basis. This means that the program is authorized for a discrete period of time and then it expires unless the temporary authorization is extended.
The EB-5 RC Program is currently authorized through June 30, 2021. This June 30 date is different than those prior authorization end dates because this is the first time that the EB-5 Program authorization is not tied in with the Federal budget appropriations bill. In the past, when the budget bill would pass, it would mean the EB-5 RC Program would automatically be extended. In December 2019 Congress decoupled the EB-5 RC Program authorization from the budget, so that means Congress needs to pass a separate bill to extend the EB-5 RC program.
Senators Grassley and Leahy have a bill drafted that will extend the EB-5 RC Program permanently but it will need receive the approval votes of a majority of Senators to pass. We are optimistic that it will pass in some format and thus there will be no interruption in the EB-5 RC Program. However, until it passes, there is obviously some uncertainty on what might happen after June 30.
USCIS has not given any clarity about what will happen (1) if there is a gap between June 30 and when a new EB-5 RC law is passed or (2) if Congress never passes a new EB-5 RC law and the EB-5 RC Program authorization permanently expires on June 30.
Our View on Reauthorization of EB-5 RC Program
We are optimistic that in the scenario where there is a gap in time between June 30 and when a new law is passed it will not impact any EB-5 petitions that were filed prior to June 30, 2021. There have been periods of time in the past when the federal budget did not pass in a timely manner and thus the EB-5 RC Program experienced short periods when it was unauthorized—those short periods of time when the EB-5 RC Program experienced a gap in authorization did not have any impact on the EB-5 applications that were pending with USCIS at the time. We are also optimistic that even in the unlikely event that Congress never passes a new law that reauthorizes the EB-5 RC Program that USCIS will continue to process all EB-5 related benefits for those who had pending or approved Form I-526 petitions as of June 30.
IIUSA’s View on EB-5 RC Program Reauthorization
In the last two weeks a well-known and respected EB-5 lawyer presented IIUSA’s view on the EB-5 RC Program reauthorization. This view is that if the EB-5 Regional Center Program is not reauthorized, then anyone who is not in the United States on a “conditional green card” on June 30, 2021 will have their EB-5 application terminated and will then have to re-apply all over again (probably with fresh funds) if and when the program comes-back.
How This Impacts My Case
1. What if I have not filed my EB-5 petition (I-526) before June 30, 2021?:
If the program is allowed to expire in June 2021, then you will be unable to obtain a U.S. green card through the EB-5 RC Program and you would have to wait to see if the EB-5 RC Program is brought back in the future.
2. I have filed an I-526 but it is awaiting adjudication:
Although the risk may be small, under the IIUSA view your case would be terminated and you would have to make a fresh application in a new project in the future.
3. I have an I-526 approval but I am awaiting a consular interview:
In this circumstance we believe that the risk to you is lower, although under the strict IIUSA view your case would still be terminated.
Writ of Mandamus
If your Form I-526 petition is still pending, you may want to file a complaint against USCIS in Federal court as soon as possible to ask the court to issue a Writ of Mandamus (WoM) that will order USCIS to make a speedy decision on your case. Please contact us if you would like to discuss this Writ of Mandamus option further.
While our firm has traditionally counselled clients that there is no guarantee with a WoM and that filing a WoM may in fact have no impact on their I-526 case until the I-526 filing has been pending for two years, the June 2021 reauthorization issue changes our views of the risks involved. Please note, filing a WOM requires an additional fee to be paid.
Please note, EB-5 applications related to direct investment in a company (meaning NOT done through a Regional Center) are not impacted at all by this June 30 reauthorization date.Copyright © *2020* *Davies & Associates*, All rights reserved.
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