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Current EB-5 Legislative and Regulatory Landscape

Washington, D.C., March 8, 2018: February has passed without new EB-5 rulemaking proposals from the Department of Homeland Security (DHS). Although this marks a schedule slip from its previous “02/00/2018” final action date, the absence of DHS rulemaking could indicate a “wait and see” approach to the Congressional immigration debate.

 

In autumn 2017, the DHS changed its rulemaking final action to February 2018, instead of the original April 2018 deadline. The most recent DHS pronouncement on program changes came in a rulemaking publication in January 2017, which included raising the minimum investment amount to $1.35 Million for TEA investments ($1.8 Million for non-TEA investments), giving DHS the authority over TEA designations, and allowing certain EB-5 petitioners to retain their original priority date even if their petitions must be withdrawn and refiled. The EB-5 regional center pilot program is one of several that depends on Congressional renewal by March 23 in order to continue. The DHS silence on its rulemaking may indicate a deference to Congress, in the event of legislative agreement on updating the EB-5 program.

 

Meanwhile, several draft bills in Congress have included language which proposes ending the Diversity Visa lottery and reallocating these visas to the employment-based system, with the aim of reducing significant backlogs in these categories. This possibility could be very beneficial to the EB-5 program should the category receive additional visas as a result of new legislation. The current waitlist for main-land Chinese nationals continues to increase and other countries may soon follow-suit. Adding additional visas to the EB-5 category would reduce current wait-lists for Chinese applicants.

 

However, with Congress and the White House currently focused on Deferred Action for Childhood Arrivals (DACA) and overarching immigration reform, it is uncertain whether a final immigration bill will address the specifics of the EB-5 regional center program.

I.A. Donoso & Associates, LLC, is a law firm based in Washington, D.C., and is recognized as a leading immigration law firm with recognized expertise in visas for EB-5 investors, professionals and academics.