With living things, death is a pretty clear-cut situation; the reader, or the robin on the reader’s back porch, is either alive or dead, at any given moment – there are no nuances.
But when it comes to the expiration of the authorization for most of the EB-5 (immigrant investor) program, which came at the stroke of midnight on June 30, things are more complicated, as they are with many public programs.
As previously noted, the whole EB-5 program was not washed away, just the 99 percent of it that deals with the regional centers that pool the aliens’ investments. A non-controversial segment that gives green cards to a family that will actually run a new business of the appropriate size will continue, though it is almost a dead letter it is used so infrequently.
The controversial part of the program is the one that gives green cards to an alien investor, his or her spouse, and all the kids under 21 if the family puts enough money into a DHS-identified, but not DHS-guaranteed project. The congressional authorization for this part died this week. This is the part of the program that created numerous scandals, with usually the alien investors being cheated by citizens who ran some of the regional centers. The minimum amount, prior to November 2019, was $500,000; it is now $900,000.
The interesting question is what will happen to applications for the program that arrived on or after July 1?
A CIS Scoop. No one else has noticed this in print, but the Biden administration is taking a different stand on this narrow issue than the Trump administration did three years ago when the Congress last failed to extend the program. (Back then Congress unfortunately restored the program’s authorization later.)
The difference this time around is how incoming program applications are handled.
Back in 2018 the Department of Homeland Security said that it would accept applications for two aspects of the EB-5 program but would not act upon them until such time that the program was revived, if it was revived.
This time, in a notice to the industry, DHS says clearly that they will reject some of the same applications. It is a nuance, but perhaps a telling one. In 2018 DHS must have thought, and they were correct, that the program would be revived. This time DHS may believe the program is dead, or it may hope that is the case.
How do we know? We read what two different EB-5 related law firms reported three years ago and this week.
In 2018 Greenberg Traurig reported that DHS would:
. . .continue to receive regional center-affiliated Forms I-526, Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status, after the close of business on Dec. 22, 2018. As of Dec. 22, 2018, USCIS will put unadjudicated regional center-affiliated Forms I-526 and I-485 (whether filed before or after the expiration date) on hold for an undetermined length of time.
This week, USCIS issued guidance saying:
Due to the lapse in authorization related to the Regional Center Program, USCIS will reject the following forms received on or after July 1, 2021:
- Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program, except when the application type indicates that it is an amendment to the regional center’s name, organizational structure, ownership, or administration; and
- Form I-526, Immigrant Petition by Alien Investor, when it indicates that the petitioner’s investment is associated with an approved regional center.
The form I-526 is the key one. It is filed by the aliens who want to invest in the EB-5 program. As we noted earlier, the demand for the program is so low that nine or fewer I-526s were filed in the first three months of this fiscal year, October through December 2020. The nine or fewer figure should be compared with the number of visas authorized by law each year, about 10,000.