Mark Twain once said upon reading his own obituary, “The report of my death was an exaggeration”. In the last week there have been numerous reports, even from USCIS itself, that the EB-5 Regional Center Pilot Program was given a new (albeit very short) lease on life by being included in the Continuing Resolution. Note, the EB-5 program generally is a part of the Immigration and Nationality Act of 1990 and not in need of regular reauthorization. So it seems that the Regional Center Program continues to exist until mid-December of this year. Or does it?
At first blush, the continuing resolution provides funding for program that exist. It doesn’t directly extend the programs itself, unless there is specific language to that extent. With respect to the Regional Center Pilot Program, and a couple of other important immigration programs, Congress did not put in the added language. It is important to note, Congress did so in the case of the eVerify program.
So did the Regional Center Program expire? This question is of profound importance, not only to the EB-5 Regional Center community, but also to the Conrad 30 Waiver Program, and the non-minister special immigrant religious worker program. These questions are not just theoretical in nature. So concerned was the Senate Judiciary Committee, that they requested a memo on these points from the Congressional Research Service. A copy of that memo, dated October 3, 2016, is included with this article.
The memo is an excellent review of the statutory and case law affecting the answer of whether these immigration programs actually now exist. The conclusion is that there is a basis to question whether they do. See page 8, “As an initial matter, the FY2017 CR does not have any provisions that would expressly address or extend the four immigration provisions, either by directly amending the relevant statutes or by directing that such statutes “be applied” using a different date.”
The memo then analyzes the present programs and CR against the precedent cases and fact patterns, “The Consortium Venture Corp. case discussed above held that a CR did not automatically extend provisions found in an authorizing statute “in the absence of express language reestablishing or continuing that authority.’” See page 9.
“While the FY2017 CR explicitly extends appropriations, and the authority and conditions imposed on those appropriations, contained within the FY2016 DHS Appropriations Act, the Act is otherwise silent with regard to the extension of authorizations in the FY2016 DHS Appropriations Act that are not tied to funds provided therein.” [Emphasis added, see page 9.] “Insofar as no funds were provided in the FY2016 DHS Appropriations Act specifically for the other three provisions, and given that FY2017 CR did not otherwise extend the sunset date authorizing those three programs, it does not appear that this reading of Section 101 would require the conclusion that the “authority and conditions” regarding those three provisions [non-eVerify programs referenced above], such as the date extension, would be continued by the FY2017 CR.” Page 9. Emphasis added.
For the moment, USCIS believes that the Regional Center program is alive (and maybe even well). Or maybe it shouldn’t and it should take the position that it has in fact expired, thus forcing the issue for direly needed reforms to the Pilot Program. This may also create the impetus for one or a group of EB-5 investors who invested in a non-regional center based ‘direct’ project to sue USCIS to force them to stop all petitions related to Regional Center sponsored projects, as such adjudications are causing massive delays to the direct-based petitioners’ adjudications, who are thus harmed.
One way or the other Congress should act to fix the situation. Ambiguity is bad for any system of law or marketplace (and EB-5 is a bit of both). Hopefully, they will take the opportunity to really pass needed reforms to the Regional Center pilot program and stop kicking the legislative can down the road.
Reprinted with permission.
Originally posted at: ILW.COM EB-5 Blog