The New Year brings us an EB-5 Regional Center Program in abeyance. According to the recently issued USCIS guidance for EB-5 Regional Centers and their investors (a copy of which can be found at this link: https://www.uscis.gov/working-united…gional-centers ), investors at the I-829 stage may suffer potentially dire consequences of the government shutdown.
By way of background, the EB-5 Program itself was created in the Immigrating and Nationality Act of 1990. That act is permeant law in that there is no stated time of expiration. In contrast, the Regional Center program was created in separate legislation in 1993, which contained a three year ‘sunset’ provision or expiration date. The major benefit of the Regional Center program was to allow the petitioners to use econometrically calculated jobs to satisfy the ‘direct’ job creation requirement of the 1990 Act.
In the last several years, Congress has declined to enact a full three-year reauthorization, instead, lumping the EB-5 program (and many other immigration and non-immigration programs) into ‘omnibus’ legislation as part of the annual budget laws. When President Trump refused to sign the most recent bill to fund the Federal Government, he effectively terminated the EB-5 Regional Center Program.
This has happened before and each time the new bill that was eventually passed retroactively restored the Regional Center program so that there was no real effect on petitioners. This time things may turn out differently. If the shutdown runs for an extended period of time, which some in Washington, including the President suggest it may, Regional Center based petitions may truly suffer.
The USCIS Guidance noted above has placed I-526 petitions “on hold for an undetermined length of time”. This is actually very kind of them as USCIS could simply continue adjudicating the petitions based on what is the currently law of the land (the 1990 Act). These petitions would almost certainly lack a business plan showing the creation of ten full time employment positions per petitioner, which would therefore require a denial.
With respect to I-829 Petitions, the USCIS Guidance goes on to state, “All Forms I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, filed before or after the expiration date, will not be affected by the expiration of the program.” The phrase, ‘will not be affected’ is a curious choice of words. Does this mean that USCIS will allow the petitioners to claim the benefit of econometrically created jobs, even though there is no statutory basis for doing so? Or does it mean that the ‘adjudication’ of I-829 petitions will not be affected, in that USCIS will continue to process the petitions, but simply apply the current law, which would require denials where the project did not have sufficient direct job creation? If the Petitions were approved under the defunct law, would anti-immigration forces in Congress have standing to sue USCIS for failure to appropriately enforce the law?