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Apr 25, 2017

Gazing Into the Abyss: How USCIS Would Handle an EB-5 Regional Center Program Lapse

Matthew Galati

The USCIS Regional Center Program is scheduled to sunset this Friday, April 28, at 11:59 PM. To a large extent, we have been here before. The Program’s ongoing status is once again dependent upon reauthorization in a Continuing Resolution (CR) or other spending bill. A new *draft* bill has been leaked by influential senators’ offices. And some lawmakers are drawing red lines that the Program cannot be extended without change again, even though those lines might be crossed.

Does any of this sound familiar? It should. But there is one very different element this go-round: President Trump.

Despite Republican control over each of the political branches of the federal government, Congress appears even at this late hour to lack consensus on what a CR should look like. Over the weekend, Trump and Senior Administration Officials signaled that without funding for a Mexican Border Wall, a shutdown might be possible. Without a CR in place by Saturday morning, the Regional Center Program will lapse, at least temporarily.

So then what happens?

USCIS has not publicly given guidance on this issue for many years – but the topic was raised at two instances in 2009, which provide some guidance.  As first explained by the agency in February 2009, when stakeholders were examining the possibility of a March 6, 2009 lapse:

If the sunset date is not extended, affected Regional Center sponsors and certain Regional Center affiliated I-526 petitioners will not be able to benefit from indirect job creation under the sunsetting provisions[.] No new Regional Center Proposals will be accepted[.] All Forms I-526 received after March 6, 2009 must demonstrate that all ten jobs created will be direct, permanent, full-time (35 hours per week) jobs for qualified U.S. workers.

Clearly, no new I-924s can be filed. From a market standpoint, Pooled Directs accordingly would become *the* option for investors seeking Green Cards and passive roles, especially if the threat of raising minimum investment amounts subside. Entrepreneurial Directs would continue as they have for the past 26 years. USCIS treatment of new Regional Center (RC)-affiliated filings is somewhat obvious, and anticipated by practically every stakeholder in the industry.

The more interesting questions are what would happen with pending Forms I-924, I-526, I-485, and I-829 filings that are affiliated with a now-defunct program. In bracing for a March 2009 lapse, USCIS explained:

Unless the program is extended, USCIS will hold unadjudicated Regional Center proposals and Regional Center affiliated I-526 petitions that were received before the provisions sunset in abeyance for an indeterminate period of time pending further action by Congress. If Congress does not act to reauthorize the Pilot Program, final determinations will be made based on the evidence of “direct” job creation. The decisions will be made based either on the existing evidence of record or in response to a request for evidence, and denials will be issued for any pending Regional Center Proposals.

USCIS has not made a final determination whether it may approve Regional Center affiliated adjustment of status applications after the provisions sunset and it will hold these Form I-485 applications in abeyance pending a final determination or Congressional action. If the sunset provisions are extended, adjudication of the held cases will resume promptly. USCIS will provide further guidance to the public if legislation is enacted to extend the sunsetting provisions.

Four months later, USCIS’s California Service Center (which adjudicated all EB-5 filings before the creation of the Immigrant Investor Program Office) held a stakeholder meeting with AILA and IIUSA on the topic, largely parroting the same positions. AILA Doc. No. 09071362 (paywalled). 

Importantly, for condition removal purposes:

Forms I-829, Petition by Entrepreneur to Remove Conditions, whether affiliated with a Regional Center or not, will be unaffected by the sunset of these provisions of the Immigration and Nationality Act.

USCIS is overdue for new guidance to stakeholders on their plans for sunset, especially as pending filings remain at all-time highs. Nevertheless, based on this eight-plus year old guidance, we can predict that the agency will approach the filings as follows, should there be no Regional Center program on April 29:

Form

Purpose

USCIS’ Action in Absence of Regional Center Program

I-924

Application For Regional Center Under the Immigrant Investor Program

  • No new filings
  • All pending held in abeyance for indeterminate time
  • All pending eventually denied without RC Program resumption

I-526

Immigrant Petition by Alien Entrepreneur

  • Pooled and Entrepreneurial Direct filings unaffected
  • No new filings unless they solely utilize direct hires for job creation
  • Pending RC filings held in abeyance for indeterminate time
  • Pending RC filings eventually adjudicated solely on basis of direct job creation, likely leading to widespread denials.

I-485

Application to Register Permanent Residence or Adjust Status

  • Unclear. To be on the safe side, those with approved Forms I-526 should file as soon as possible.
  • Pending filings held in abeyance.

I-829

Petition by Entrepreneur to Remove Conditions

  • No changes, even if Regional Center affiliated and leveraging indirect 100% job creation.

 

 

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