U.S. EB-5 Investor Immigrant Program Facing Serious Challenge

The U.S. EB-5 regional center program has endured a lot of setbacks over the last few years. Foreign investor confidence in the program was shaken by a string of events. For one thing, renewals of the regional center EB-5 program were decoupled from the normal Congressional budgetary process, thereby making it harder to get the program renewed. Covid-19 made it very difficult to raise capital and case processing was slowed down during the pandemic. President Trump raised the minimum investment to $900,000. Then the Behring case came along to knock out the regulatory changes brought in under Trump. Finally, and even more significantly, Congress allowed the regional center program to sunset as of June 30th, 2021. For nine months the EB-5 regional center program wandered in no man’s land looking for a resurrection. Finally, on March 15th, 2022 Congress adopted the EB-5 Reform and Integrity Act of 2022, setting out the date of May 15th, 2022 as the new date when the regional center program could once again become operational.

A Surprise New Form

In a recently published set of new frequently asked questions (FAQs) the U.S. Citizenship and Immigration Service (USCIS) announced a new policy dealing with the regional center EB-5 program. The position taken is not going over well with many representatives of the investor immigration community. It states, “Entities seeking to be designated as a regional center are required to file Form I-956, Application for Regional Center Designation. USCIS will be publishing this new form, including the form instructions, with additional information regarding the filing process by May 14, 2022.” The regional center program was to begin functioning on May 15th, 2022. The implementation of the Act with this new step is not a welcome development.

Redesignation Is Necessary

The problem is compounded by the fact that the USCIS is taking the view that previously designated regional centers are not able to maintain their designation without filing the new Form I-956. They argue that the EB-5 Reform and Integrity Act of 2022 repealed the legacy Regional Center Program, thus making it necessary for previously designated regional centers to reapply for designation. The position taken delays individuals seeking status as an immigrant investor from filing a Form I-526 petition as an Alien Entrepreneur after May 14, 2022, because the regional center must first file the I-956 to get approval and then submit a project application and receive a receipt number for it to be eligible to help investors file for their green cards.

Grandfathered I-526s Can Be Processed

Luckily, not all foreign investors are being delayed by this surprise USCIS move. The USCIS is processing regional center related Forms I-526s filed on or before June 30, 2021, that is to say, the sunset day of the previous regional center program. While repeal of the prior immigrant investor program requires previously designated regional centers to reapply for designation if they wish to continue their participation, the need to reapply does not impact petitions that were pending prior to March 15, 2022. Since such petitions were grandfathered by the new legislation, the processing is being undertaken according to the applicable eligibility requirements at the time such petitions were filed.

New Regional Center Program On The Line

That said, it is clear that the success or failure of the new regional center EB-5 program is on the line here. Some have asked whether the new Form I-956 can be processed on an expedited basis. The fear is that if these applications are not processed within say a month or two, the confidence of foreign investors in the regional center program will be shaken to the point where the program will be left high and dry. Why wait to see how long the U.S. is going to take to open up its foreign investor immigration program when other countries are offering these same foreign investors excellent alternatives?

The only hope is that the USCIS will get its act together and process these applications on a priority basis to open up the new regional center program and get it running the way it should be run as soon as possible.