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EB-5 Program Lapse: Added Delay for Many Investors

This past week we have seen a lot of news about the EB-5 industry: the Regional Center Program Sunset, activity on reauthorization of the program in the US Senate, and the reversal of the 2019 regulations (thus turning back the minimum investment level to $500,000). Despite significant bi-partisan effort, Congress was unable to extend or reauthorize the Regional Center Program, and unfortunately, now the EB-5 Regional Center Program has been suspended.

Before the end of the business day on June 30, 2021, USCIS issued an alert containing guidelines about how the agency will deal with EB-5 petitions related to investments in Regional Center projects now that, as of the end of June 30, the EB-5 Regional Center program has experienced a lapse in authorization. (Direct investment EB-5 applications are unaffected.)

As always we recommend clients talk to their immigration attorney about their case.   For many investors, this lapse will cause added delays because the USCIS can not process applications while the program is not authorized by Congress.

In its guidance, USCIS states investors who have applied and are awaiting approval will need to be patient, since I-526 adjudications will not be completed during the lapse in the Regional Center program. Equally new applications that arrive on or after July 1 will be rejected as the program can not accept new investors until the program is reauthorized. 

Those who have received an approval for the I-526 petition will also need to wait.  Consular interviews via the DS-260 will not be scheduled. For investors in the United States, the Adjustment of Status I-485 forms will be accepted by USCIS, but they won’t be processed.

For investors that have their conditional Green Card there is good news, I-829 petitions to remove conditions will continue to be received and will be adjudicated normally. 

Overall, the alert contains nothing different from what LCR expected based on previous lapses. We are pleased to see swift action by USCIS.  Its wording has a very positive tone and LCR, like many industry stakeholders, expects that the Regional Center program will not be permanently discontinued. We expect this suspension will end when  Congress finalizes negotiations and passes a reformed and reauthorized program. In fact, we already see a lot of “backstage” activity to amend the proposed bill that did not pass in the Senate last week so the program can get reauthorized.

The fact that senior members of both parties believe in the job creation and economic benefits of the EB-5 Regional Center program makes us confident that the Senate will act when  it returns to session in July.

It is unfortunate to see a lapse in this important program. This lapse will cause added delays to the processing of applications, but a five-year reauthorization with added integrity measures and faster processing times would be welcome.

Our expectation is to have a reauthorized program again before the current US Government fiscal year ends on September 30, 2021.

 

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EB-5 Program Update:

The EB-5 Program has lapsed. The US Congress is discussing the legislation that authorizes the program while USCIS reviews the regulations and policies for filing. Because of the recent court ruling that reversed the 2019 Modernization regulations, the investment level has shifted temporarily from $900,000 back to $500,000.

If the program is reauthorized before the regulations are updated, there may be another window of opportunity to file at $500,000.

LCR expects the program to be reauthorized in December, and continues to work with international families that want to explore alternative residency options.

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