Under current policies of USCIS, every EB-5 Investor is required to retain his or her investment capital “at risk” in the NCE until that EB-5 Investor has been in the U.S. for 2 years in conditional resident status (the “Sustainment Period”). For EB-5 investors facing EB-5 quota backlog or for the purpose to satisfy the sustainment period, many required to retain their investment capital “at risk” for a period longer than a 5-year loan term. As long as your I-829 has not been approved, redeployment may be necessary.
IIUSA sent a memo to USCIS regarding redeployment recently regarding redeployment policy on April 8. In the memo, IIUSA expressed the industry’s concern of lacking redeployment guidance and specifying the enormous impact redeployment has on the EB-5 industry. The memo concluded by stating IIUSA’s wiliness to maintain open and constructive dialogue with USCIS seeking sustainable implementation of the Redeployment policy.
IIUSA stated in the memo,
• EB-5 law does not require at-risk redeployment in NCE
• If redeployment is necessary, redeployment in any NCE should be acceptable
• Redeployment should be allowed outside the regional centers’ area and the TEAs
• Need to clarify redeployment policies regarding material changes and withdrawals
IIUSA suggested that:
• Modify project documents to meet reinvestment requirements should not be considered as major changes
• Redeployment before obtaining a conditional green card should not be considered a material change; and
• Investors have the right to withdraw during redeployment. This should not be considered as violation of EB-5 law requirements.
Invest In the USA (IIUSA). (2019). IIUSA Sends Memo to USCIS on Redeployment Policy. Retrieved from
President Trump signed the Consolidated Appropriations Act, 2019 (federal funding bill) on February 15, thus avoiding another government shutdown. The spending bill funds the federal government and extends the EB-5 Regional Center Program authorization through September 30, 2019. EB-5 stakeholders are resuming efforts towards achieving EB-5 reform and long-term re-authorization.
Regulatory Actions Currently Under Review on the list of The Office of Management and Budget shows that the EB-5 Modernization Regulation advanced on Friday 2/22/2019 to the OMB Review stage.OMB Review is the last step in the rulemaking process before publication in the Federal Register.
Below is a summary of the EB-5 Immigrant Investor Program Modernization published in the Notice of Proposed Rulemaking for RIN: 1615-AC07, which was published in January 2017. DHS just spent two years making some kind of changes. Now the most stirring question for all is what will be in the Final Rule.
• Increase the standard minimum EB-5 investment amount to $1,800,000, or $1,350,000 in a TEA.
• A TEA is based on high unemployment and incentivized with 25% reduction to the investment amount (not other factors or incentives as proposed by Congress).
• A TEA can only be designated for a high-unemployment MSA, county, city, single census tract, or limited group of census tracts. DHS, not the states, is responsible for TEA designation.
• Give priority date protection (an investor with an approved I-526 could choose to file a new I-526 while keeping the original priority date, subject to certain restrictions)
• Spouse and children may be able to file I-829 even if not included on the principal investor’s petition.
• Other technical changes.
On Thursday, December 6, Congress sent President Trump a short-term spending bill to move back the deadline for a partial government shutdown until December 21, 2018. Both the House and the Senate passed the legislation by voice vote on Thursday. Trump is expected to sign the measure. These measures would thus extend the current EB-5 Regional Center program without change until December 21, 2018.
The EB-5 Regional Center program was supposed to expire Friday, December 7 at midnight. As Congress participated in memorial events for former president George H.W. Bush, lawmakers have decided to delay this deadline to December 21.
The two-week extension provided will provide opportunity for investors to file their I-526 petition with USCIS, before the probable EB-5 program Reform, which could see an increase to the minimum investment levels from $800,000 to $1,800,000. Even though the final investment amount has not been agreed upon, an increase in the investment measure will soon occur.
Werner, E. (2018, December 6). Congress sent President Trump a short-term spending bill Thursday to move back the deadline for a partial government shutdown. Retrieved from https://www.washingtonpost.com/business/economy/house-passes-short-term-spending-bill-setting-up-pre-christmas-shutdown-fight/2018/12/06/208144ce-f4c6-11e8-bc79-68604ed88993_story.html?utm_term=.f94ef845d1d8
Washington Update: EB-5 Regional Center Authorization Receives Short Term Extension until December 21st. (2018, December 6). Retrieved from https://www.marketwatch.com/press-release/washington-update-eb-5-regional-center-authorization-receives-short-term-extension-until-december-21st-2018-12-06
On June 19th, 2018, the U.S. Senate Committee on the Judiciary held an oversight hearing on the Immigrant Investor EB-5 Program. The well-attended committee hearing focused on reported fraud, abuse, and national security risks related to the program, and also future path for EB-5.
Throughout the hearing, the sole witness was USCIS Director Francis Cissna. Director Cissna summarized the program background; reported USCIS’s recent steps to improve the program administration and integrity; narrated much-needed proposed policy changes to reform the current program. Furthermore, advocated for legislative reform to address needed authorities for USCIS and to make programmatic changes. Director Cissna indicated that the proposed EB-5 Modernization and Regional Center regulations may take beyond the current September program authorization date to accomplish due to there are multiple agency priorities at the current time.
Attending members seemed open to reform legislation and continuation of the program citing the economic success of EB-5 program in their states.
For more information, you can watch YouTube video record on the hearing at: https://www.youtube.com/watch?v=3FAYV7HGO3g
Cissna, Francis. (2018, Jun. 19). Hearing on “Citizenship for Sale: Oversight of the EB-5 Investor Visa Program” before the Senate Committee on the Judiciary on June 19, 2018 by USCIS Director L. Francis Cissna. Retrieved from https://www.uscis.gov/tools/resources-congress/testimonies-and-speeches/hearing-citizenship-sale-oversight-eb-5-investor-visa-program-senate-committee-judiciary-june-19-2018-uscis-director-l-francis-cissna
Greenberg Traurig, LLP. (2018, Jun. 19). Senate Judiciary Committee Holds Oversight Hearing on EB-5. Retrieved from https://www.natlawreview.com/article/senate-judiciary-committee-holds-oversight-hearing-eb-5
USCIS issued policy alert on immigrant investor (EB-5) cases involving tenant occupancy on May 15, 2018. Previously, the USCIS Policy Manual allowed for tenant-occupancy methodologies used by I-526 petitioners to prove their investment would satisfy indirect job creation request. The new policy guidance deemed the tenant-occupancy methodology cannot reasonably predict the indirect job creation, and states that it “results in a connection or nexus between the investment and jobs that is too tenuous,” and as a result, will no longer considered it a reasonable way to forecast.
The change has been effective as of May 15, 2018. The USCIS will continue to give deference to I-526 and I-829 filed prior to May 15, 2018, or I-526 petitions that will be filed in future for exemplar-approved projects, as well as approved I-526 petition(s) of another EB-5 investor.
U.S. Citizenship and Immigration Services. (2018). USCIS Policy Manual Updates: EB-5 Tenant Occupancy. Retrieved from https://www.uscis.gov/news/alerts/uscis-policy-manual-updates
Divine, Bearman, and Caldwell & Berkowitz, PC. (2018) . IIUSA Member Analysis: USCIS Evicts Tenant Occupancy Job Counting from EB-5. Retrieved from https://iiusa.org/blog/wp-content/uploads/2018/05/USCIS-Evicts-Tenant-Occupancy-Job-Counting-from-EB-5-1.pdf
This month, members of Congress made a draft proposal to reform the EB-5 Program. The proposals, called the Immigrant Investor Visa and Regional Center Program Comprehensive Reform Act (EB-5 Reform Act), if passed, would be included with the government-spending bill on March 23.
Important aspects of the draft of the EB-5 Reform Act include:
• Re-authorization of the EB-5 Regional Center Program until 2023.
• Improvement and streamlining of the EB-5 process.
• Potential protections for investors whose projects did not pan out.
• 3,100 visas will be carved out from the 10,000 total number of EB-5 visas as set aside for several incentive categories.
• USCIS will not accept more petitions than that year’s quota. If, for instance, the quota is only 2,300, then that’s the maximum number of petitions they will accept that year.
• Minimum investment amount increase from $500,000 to either $925,000 or $1,025,000.
• Less strict targeted employment area proposals.
• Filing fee increases.
• An increase in the number of jobs that are required to be created from 10 to 12.
• The ability to count construction jobs as direct permanent jobs regardless of the duration of the jobs.
• Immediately after the bill is passed, no new EB-5 applications (I-526 Petitions) would be accepted for 120 days.
S Lazicki. (2018, March 11). EB-5 Reform Act, RC List Changes [Blog Post]. Retried from https://blog.lucidtext.com/category/eb-5-law-policy/
Wolfsdorf Rosenthal LLP. (2018, March 13). 10 Things to Know About the New EB-5 Reform Act. Retrieved from https://wolfsdorf.com/blog/10-things-to-know-about-the-new-eb-5-reform-act/
With just hours to spare in order to avoid a government shutdown, the House and Senate approved on December 21 a short-term continuing resolution (CR) funding federal activities through January 19. The CR was approved in the House in a 231-188 vote, and in the Senate by a vote of 66-32. With passage of the CR, Congress has departed for the holiday break and is set to return on January 3. The CR extends the current authorization for the EB-5 Immigrant Investor Program while congressional leadership and interested stakeholders continue to negotiate a long-term measure to reform and reauthorize the program. A long-term reauthorization is unlikely to move as a stand-alone bill and could be included in any spending measure approved in January. Another option for a legislative vehicle would be immigration reform legislation, which has been highlighted by Senate Majority Leader Mitch McConnell (R-KY) as an opportunity for bipartisan cooperation in 2018.
The Consolidated Appropriations Act of 2017, passed by Congress and signed May 7, extends the EB-5 immigrant investor visa program through September 30, 2017. There are two key bills that have been presented on the Senate floor. One is the Grassley Bill, mainly contributed by Senators Chuck Grassley (R-IA) and Patrick Leahy (D-VT), the other bill was proposed by Senators John Cornyn (R-Texas). The two bills represent key differences in the rural/urban interests.
The first point of difference lays on the actual definition of the TEA. The Grassley Bill promotes a very restrictive approach. It only includes existing census tract and pushes for federal regulations on TEA appointments. The Cornyn Bill is more expansive in its TEA definition and designation. The Cornyn Bill also promotes to exclude derivatives, thus increasing the effective visa count by almost three times.
The minimum amount of investment is being hugely discussed as well. Both bills initially agree to a minimum of $800,000 investment for TEA and $1,000,000 for non-TEA. Nevertheless, recently, Grassley has proposed to fully adopt the proposed regulations proposed by DHS under President Obama that would create a minimum threshold to $1,350,000 for TEA, $1,800,000 for non-TEAs.
Grandfathering will be highly likely for all cases that filed I-526 petitions prior to the passage of the bill. Nevertheless, Grassley bill has not mentioned anything about grandfathering for projects, while Cornyn bill allows a certain period of phase in.
Source: Arnstein & Lehr LLP – Ronald R. Fieldstone
Reforms to the EB-5 Immigrant Program is, once again, being due on April 28th. Nevertheless, changes likely won’t come in time. Democrats and Republicans can’t agree on how the program should be changed, even within the party. Given the looming deadline, it is more likely that at least one more short-term extension will be issued.
A few significant issues being discussed for reforms include raising the required investment amounts and introducing more oversight to reduce incidents of sponsor fraud or misappropriated funds. The investment amounts have remained the same since the program was introduced in 1990, so there is discussion about raising those amounts and ongoing debate on how much they should rise and when increases should go into effect.
One of the biggest complaints about EB-5 is that some projects qualify for the lower $500,000 investment due to cobbling together a series of census tracts in order to come up with the high unemployment numbers required for an area to be designated as a TEA. EB-5 investors have a choice between about 500 active EB-5 projects around the country, so it is no surprise that they are gravitating to high-profile developments in major metros. Before any changes take effect, investors still have the opportunity and privilege to select one of the best locations on an EB5 project offered by the Prime Group Inc.
The Canopy by Hilton is set to start construction in 2017, located in the center of Chicago downtown, and situated next to the Federal Reserve Bank, 1.5 block from the Chicago Board of Trade, and 2 blocks from the Willis Tower, the second tallest building in America, is a rare find and a secure investment for EB5 investors. This project having short-term construction period and the creation of 1,122 jobs help investors to obtain green card qualification in the shortest time possible allowed by USCIS. Please contact our agents for more details.
*Source of information taken from article from National Real Estate Investor written by Beth Mattson-Teig, 04-04-2017.
Sens. Tom Cotton of Arkansas and Sens. David Perdue of Georgia proposed to reduce legal immigration from 1 million to 500,000 green cards per year.
The bill, “Reforming American Immigration for Strong Employment Act” (RAISE Act), aims to limit the number of family-based visas so that only spouses and unmarried minor children of citizens and permanent residents can get green cards. The bill will not allow children to apply green card for their parents, as well brothers and sisters. This will stop the “maternity green card trip” which arranges for the foreign mother to bear children in the US. The children will grant green card for the parents when they are 18.
Nevertheless, if the elderly parents require special assistant from the children due to health issues, a renewable visa can be granted to parents. This visa does not grant them the permission to work, nor can they receive public benefits. The parents have to show guaranteed support of health insurance by the sponsoring children. There is no path to citizenship for the parents.
The two Senators also eliminate the diversity visa lottery that doles out 50,000 green cards a year and set a 50,000 cap on green cards for refugees.
There is no mention about EB-5 investors program in this bill. The administration is strangely mum on words about investor visa, as opposed to every other visa programs.
Unlike the past eight years, when debate centered on legalizing illegal immigrants and drawing in more legal migrants, the conversation under President Trump is likely to focus more on imposing limits.
The bill is expected to be passed by the majority of Republicans on the Senate floor.