Omnibus Key to Re-Starting EB-5

Washington, D.C., February 3, 2022: The EB-5 Regional Center Program (the “Program”) lapsed on June 30, 2021 because elected members of congress could not agree on passing legislation to keep the Program running. During the lapse in the Program, USCIS has taken the position that it will “hold” pending I-526 petitions and I-485 applications for adjustment of status that are based on EB-5 Regional Center investments. USCIS has indicated that it would continue to process Direct EB-5 petitions that do not rely on a Regional Center, and all I-829 petitions. USCIS guidance from late December 2021 indicates no change in these policies. Indeed, Donoso & Partners is not witnessing any changes in USCIS practices that would indicate a change in the policy to keep these cases on “hold.”

The expectation by USCIS, investors and the EB-5 industry is that Congress will soon approve legislation to re-start the Program.

The issue has been that since July 2021, Congress has punted – kicked the can down the road, as they say – on repeated occasions. Initial expectations were that Congress would attach an extension of the Program to the “hard” infrastructure bill that passed in September 2021. That opportunity came and went because of tense political negotiations. Similar hopes were pinned to the Continuing Resolutions passed since September 30, 2021, and the “soft” infrastructure bill that died in the Senate in January 2022.

On the bright side, these efforts indicate continued willingness among legislators to try to re-start the Program. On the negative side, the reality of the US Congress is that inertia rules the more frequently than action, and any legislation that deals with immigration is a tough sell to elected officials.

The latest Continuing Resolution must be renewed by February 18, 2022. The expectation among observers is that the Program will be re-started by attaching legislation to the Omnibus spending bill that has to be passed by the U.S. Congress to keep the U.S. federal government operating. Reports indicate that elected officials are making progress in that regard, which brings hope to investors and the EB-5 industry. Yet, there is a resounding lack of information on whether the legislation to renew the Program will definitively be included with the new Omnibus spending bill. Moreover, there is no clarity in the public realm about what type of legislation will be passed. Will it be a detailed EB-5 reform bill, or will it be a two-line renewal of the Program that leaves it up to the Department of Homeland Security to issue new regulations to reform the Program?

The fate of the Program will become clearer in the next two weeks. At Donoso & Partners, we continue to believe that the likeliest scenario is that the Program will be re-started; that investment amounts will increase to a minimum of approximately $750,000; that pending EB-5 petitions will be protected and that improvements to the Program will be forthcoming (probably through regulatory action).

We are anxiously awaiting confirmation that these improvements will take concrete shape in the coming weeks.

Donoso & Partners, a leading immigration law firm based in Washington, D.C., will continue to report on developments regarding the immigration law and policy through our news section of donosolaw.com.

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Donoso & Partners, LLC provide assistance with review and advice regarding eligibility for visas to the U.S. or Canada.

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