EB-5 Program Update: Waiting on Legislative Reauthorization

When Congress did not include EB-5 reauthorization in the Continuing Resolution that maintained funding of the government until December 3, we recognized that the program would likely be on hold through October and November. It is also likely that the delays will continue into December, given the amount of negotiation going into the key legislative vehicles that are moving through Congress.

The good news is that we’ve seen some public confirmation of the informal feedback we’ve had from the Congressional offices we work with in Washington.

On October 19, the US House of Representatives’ version of the Grassley–Leahy bill (H.R. 2901) was referred to the Subcommittee on Immigration and Citizenship by the House Judiciary Committee. This is significant, because it confirms that the senior members of the House are working on the bill and that an effort is underway to consider changes that will gain enough support to pass or be included as an amendment on another bill.

The other good news we’ve seen is that in the Department of Homeland Security, USCIS has posted an alert on October 4 confirming that it will hold all applications at least until the end of the year. USCIS also clarified that it will continue to process Employment Authorization applications (Form I-765) and Travel Documents (I-131) associated with petitions of applicants waiting for Permanent Residence ( I-485). This constitutes another group of investors who are receiving good news since, when the program lapsed, the agency was clear that those investors with an approved conditional green card (I-485 approval) will still be able to file for the removal of conditions (I-829) and apply for citizenship afterward.

This suggests that USCIS does not at this point believe the program has been discontinued, which would require it to return all pending applications. It is also encouraging that some clients are receiving Employment Authorization Documents (EADs) during the lapse.

That said, Congress must act to pass reauthorization legislation.

There are more than a few people talking about how this can occur, and at LCR we’ve been careful about feeding the rumor mill. We know that legislation can change at many points in the process and that speaking on investment levels, TEA definitions, and visa counts can only be speculation.

We support the work IIUSA, EB5IC, and the US Chamber of Commerce are doing and have been encouraged by the industry consensus that could bring added integrity measures and a long-term reauthorization. While it is clear that every piece of legislation moving through Congress right now is getting a high level of scrutiny and debate, the country needs foreign investment. An efficient EB-5 program can do a lot to support economic growth coming out of the pandemic.

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