EB-5 VISA: WHAT’S NEXT?

The controversial EB-5 Visa program that offers green cards to immigrant entrepreneurs whose investments create 10 full time jobs in the nation, currently continues to deal with an uncertain future. Beginning in the year 1990, the EB-5 Visa program was initiated with a motive to encourage investments by foreign investors to aid job creation in the country to boost the US economy.

Recently the office of Management and Budget came up with a new deadline of February 2018 for the decision on EB-5 regulations. On this date there are expectations of a drastic increase in the EB-5 investment amount.  If a final decision on EB-5 visa regulations is taken, it could actually go into effect from March 2018. Right now all eyes are on the next regional center program sunset date i.e. February. Although maybe this deadline will be pushed back for some weeks with some other continuing resolution.

This might be the scene if Congress will fail to pass a new funding bill in the month of February itself and delay the funding and immigration fight with some form of resolution. Finally, April 2018 is expected to be when the new EB-5 regulations will possibly come into effect. This date is predicted on an assumption that the final rule on the EB-5 visa regulations will be finalized in the month of February this year.

At present with the pressure of sunset dates, the struggle on the EB-5 visa continues. There have been certain talks about reshuffling visa numbers in the expected immigration reforms. But a clear discussion on the EB-5 visa is yet missed out in any of the recent discussions on immigration. It is hoped for that Congress has in mind the EB-5 visa in a scenario where the left is all in for DACA, and the right is engrossed with border security and chain migration. It is high time that some action is taken to authorize the regional center program for a longer term. There is a dire need to give way for program changes rather than wait for new regulations and also a need to free up more visas for EB-5 to realize the potential of the entire program.

It is still not definitive what will be the effects of broad-based immigration legislation on EB-5. Even a meeting on immigration reform attended by President Trump last week failed to disclose any details that might affect the EB-5 in any way. The focus of this meeting was around four high-priority areas that need reform including – border security, chain migration, visa lottery, and the Deferred Action for Childhood arrivals policy.

In 2018 there could have been two possible outcomes for the EB-5 visa. In the case where Congress does not extend the EB-5 regional center program, many issues will surface. Congress did not address the possibility of issues that might see daylight if it fails to maintain the EB-5 center regional program. In this scenario, the chances of litigation would increase with applicants whose petitions had been filed and approved before the expiration date. But by extending the EB-5 regional center program, the Congress managed to avert any such possibilities.

In case Congress fails to enact reforms in the EB-5 Visa by April, 2018, it is likely that the Department of Homeland Security will take up the responsibility to implement the changes in the EB-5 regulations. The Department of Homeland Security’s integral proposed changes integrate many shifts in the current EB-5 Visa policy. These proposed changes are –

• Increasing the minimum amount for investment.
• Permitting a few EB-5 petitioners to retain their actual priority date.
• Modify the criteria for the designation of targeted employment areas.
• Miscellaneous changes in the pattern of filing and interview.

One of the main concerns regarding the change proposed for the EB-5 program involves the increase in the minimum amount of investment. This expected increase in the minimum investment amount is seen as a major cause that might bring a drop in the number of applicants in the future. This might influence applicants to move towards other nations for suitable immigrant options. On the other hand, applicants who are not bothered with the increase in the minimum investment amount and are determined to immigrate in the US will directly benefit from this situation. Due to a slow-down in the number of applicants for the EB-5 visa, these immigrants will have increased chances of getting their applications processed. One such example is  that of Mainland China that suffers from about a 8-10 year wait time for getting a conditional Green Card.

At present the Federal government’s Office of Management and Budget is involved in setting out new rules for the EB-5 Visa. It is expected that apart from the increase in minimum investment amount up to $1,350,000, the new rules might also negatively affect the investment area. There are rumors that the new rules might bring about a shift in the target employment area along with shifting the portability of priority dates. The new EB-5 rules will be implemented within a grace period of 60 days.

Continuous changes are expected in the EB-5 until all the plans get finalized by the USCIS and Congress comes up with a legislative solution that is characterized as a longer term solution. Still, whenever the new rules come in effect, it is for sure that the EB-5 criteria will go through a major change. With the estimated increase in both the processing times and the minimum investment amounts, it is likely that EB-5 will pull in less applicants than before. Hence it is advisable for potential investors to file EB-5 applications (Form I-526) ASAP under the present EB-5 rules. Learn more about the EB-5 program here.