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New EB-5 Regulations Continue to Move Forward
Posted on 01/02/2018 by Mark A. Ivener, A Law Corporation
We have recently received word that the Office for Information and Regulatory Affairs (“OIRA”) at the Office of Management and Budget of the White House is finalizing their review of new EB-5 regulations. The new regulations under review would increase required EB-5 investment amounts, centralize the designation of Target Employment Areas (“TEAs”) at US Citizenship and Immigration Services (“USCIS”), allow portability for priority dates and change some technical aspects of the EB-5 program.
The review by OIRA was briefer than we would have expected. This is likely the case because the Trump administration sees EB-5 as an effective job creation tool, and they believe they can secure the EB-5 program’s future by implementing these new regulations. At the same time, we do expect the Trump administration to push Congress to take action on the EB-5 program.
At this point it seems likely that Congress’ action on EB-5 will be affected by the ongoing debate regarding the Deferred Action for Childhood Arrivals (“DACA”) program. This program, often referred to as the ‘Dreamer’ program, has been a source of intense political conflict this year as the Trump administration overturned the Obama-era program and created confusion for the 800,000 young undocumented people currently living in the US under this program. We expect a resolution to DACA to be a priority for Congress in early 2018, and do not expect that there will be any major progress made on EB-5 until DACA is resolved. Because of this, there is a chance that Congress will not find a true long-term solution for the EB-5 program this year, and the USCIS regulation will continue to determine the process for investors looking to obtain an EB-5 visa.
Our expectation is that when the new EB-5 regulation is published by USCIS, possibly in February, there will be a 60-day grace period before changes take effect. This grace period is intended to allow for Congressional action and to permit regional centers with ongoing raises to complete their raises or change their offering documents. We expect to see a rush in new EB-5 investment applications during the 60-day grace period, especially from India and Vietnam. Some industry experts are predicting up to 2000 new investments will materialize during the grace period.
All of this means that the next few months may be a confusing and fast-paced time in the world of EB-5 visas. We are committed to helping our clients stay informed on changes as they come, and to working with our clients to develop sound strategies for their EB-5 applications.
Should you wish to get advice on an upcoming EB-5 application, please do not hesitate to reach out.
