The Future of the “Pilot” EB-5 Regional Center Program

On January 28, 2015, Congressman Polis (D-CO) and Congressman Amodei (R-NV) introduced H.R. 616: American Entrepreneurship and Investment Act of 2015 (“H.R. 616”), a bill designed to “provide reforms to the EB-5 immigrant investor program…”1 This legislation contains a number of changes, technical in nature, implemented to both improve the efficacy of the program as well as benefit investors. The following describes many of these key additions with respect Benefits to Investors.

 

 

Included herein are some of the most notable inclusions in H.R. 616, sans the permanency of the program: codification and limitation of processing times; elimination of “country cap;” and concurrent filing of adjustment of status.

 

As of January 20, 2015, processing times for the I-526 were nearly 14 months.2 H.R. 616 seeks to rectify this by codifying a maximum time for which petitions must be adjudicated. Under this proposal, the Secretary of Homeland Security must adjudicate a petition “not later than 180 days after the date on which the petition is filed.” The presence, and implementation, of an “adjudicate by” date should greatly aide the process. Through FY2014, there are over 12,000 petitions pending. Numbers this high are a detriment to the program’s viability. Improving the processing times will avail the program, and its benefits, to more foreign investors, which in turn may allow a greater number of foreign investors to invest in the United States.

 

Present immigration policy limits the number of visas issued per country to 7 percent of the worldwide allotment.3 This was initially implemented to protect any single country from monopolizing the annual quota.4 When any one country begins to near this mark, USCIS implements a process whereby they place a “hold” on review of a petitions from that particular country. This process, known as retrogression, occurred for Chinese foreign investors in 2014, the first time in the 24-year history of the EB-5 program.5 This is expected to occur again in 2015. The results of retrogression could prove a detriment, and may result in a slowdown in EB-5 Regional Center activity. H.R. 616 aims to solve this problem by placing a 15 percent per year cap on I-526s. Observing the data USCIS posted at the close of FY2014, a total 5,115 I-526 petitions were approved. More than doubling the “cap” to 15 percent effectively eliminates the chance of future retrogression for any country participating in the EB-5 Regional Center program.

 

Another significant alteration to immigration policy, found in H.R. 616, is allowing concurrent filing of immigrant petitions (I-526) and adjustment of status (I-485) applications (“AOS”). Presently, a foreign investor must file his/her I-526, be approved, and then file either their I-485 if he/she is already in the United States or DS-230 or DS-260 in his/her home country. Under the proposed changes, a foreign investor may file their AOS concurrently if, at the time of filing, an immigrant visa would be immediately available. This presents a great opportunity for foreign investors to dramatically reduce the delay in receiving their conditional permanent residence. Pragmatically, its effect is a reduction of fifteen months -- what presently takes over eighteen months (fourteen for I-526 and four for I-485) will be reduced to merely 180 days.

 

 

It will be important to keep an eye on H.R. 616, which at the present time is the only legislation seeking to extend the EB-5 regional center program, as it has only recently been referred to the House Judiciary Committee, and subsequently referred to the Judiciary Committee’s subcommittee on Immigration and Border Security. The Polis bill is a strong step in ensuring the future of the EB-5 Regional Center program. It augments the current program with both safeguards and benefits to effectively provide for a more efficient program. At the present time there is great optimism that the EB-5 Regional Center program will either gain reauthorization or be granted permanent extension.

 

 

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