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Dec 27, 2016

It Sure Looks Like New EB-5 Regulations are Coming in 2017 (Part 1)

Matthew Galati

Last week, USCIS moved forward with an important procedural step in the regulatory rulemaking process by sending proposed EB-5 regulations to the Office of Management and Budget (OMB).

As a gatekeeper to the regulatory drafting process, the OMB’s Office of Information and Regulatory Affairs (OIRA) serves as the central authority for the review of Executive Branch regulations and other core functions, handling both proposed and final regulations prior to publishing. Generally, OIRA has 90 days to review the proposed regulation amendments, although this can be lengthened as necessary. There is no minimum review time and thus the draft regulations could be published in the Federal Register at any time through a Notice of Proposed Rulemaking.

USCIS has not released text of the draft regulation. However, the OIRA web site includes the following summary:

“This rule would benefit regional centers by clarifying the requirements for designation and continued participation in the EB-5 program, making the application process more transparent for regional centers and streamlined to improve DHS operational efficiencies. The rule would benefit entrepreneurs seeking to participate in the program by providing the opportunity to mitigate the harsh consequences of unexpected changes to business conditions through priority date retention in limited circumstances. This rule would also provide a more transparent process for entrepreneurs seeking to participate in the regional center program by providing increased consistency and predictability of adjudications through the clarified regional center continued program participation requirements. These changes will also streamline the adjudication process and improve DHS operational efficiencies, resulting in improved adjudication times. Finally, the Federal Government will benefit from clarifications and enhancements to the EB-5 program to strengthen program integrity, reducing the risk of fraud and national security concerns in the program, as well as improving operational efficiencies to reduce overall program costs.”

What might be included? Check in with us later this week for our take on what changes could be on the horizon.

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