Congressional Omnibus Bill Likely to Extend Current EB-5 Program Without Changes

March 21, 2018

Washington, D.C. – March 21, 2018: Nearly two weeks after the U.S. Senate released a detailed draft of new legislation aimed at reforming the EB-5 Regional Center investor visa program, our law firm has learned that this EB-5 bill will likely not be included in the upcoming omnibus spending bill set to be passed by Congress on March 23, 2018. Instead, the omnibus legislation includes a short-term extension of the current EB-5 Regional Center Program through September 30, 2018.

The draft EB-5 legislation is an evolution of earlier drafts proposed by Senator Grassley’s office over the last 3 years. We were informed that the draft EB-5 legislation was written with input from other Senate offices including that of Senator Cornyn. The draft EB-5 legislation proposed several important changes to the program, including: (1) raising the minimum investment amount to a minimum of $925,000 for high unemployment areas and $1.025 million for all other areas; (2) implementing broad regional center certification and background check measures; (3) allowing for concurrent filing of I-526 petitions and I-485 applications to adjust status if no visa waiting list applied, and (4) earmarking 1,450 visas each year for investment projects in rural areas, 1,450 visas for investment projects in high-poverty urban areas and 200 visas each year for government infrastructure projects (where any unused visas were retained by the earmarked categories for subsequent years).

The positive features of the legislation were outweighed by the highly controversial impact of visa earmarks on investors who have already filed their visa petitions. The proposed Senate legislation would have caused dramatic increases to the waiting list for the large majority current investors (primarily from the People’s Republic of China), and accelerated the arrival of new waiting lists from investors from India and other countries – unless they agreed to pay an additional $425,000 to invest in a new project located in a rural area or distressed urban area.

Senator Grassley spoke to the Senate shortly after news became public that his EB-5 legislation would not be included in the omnibus legislation. Senator Charles Grassley called on Congress to terminate the EB-5 Regional Center Program.

Other observers remained more positive, primarily because broad agreement exists on most features of the EB-5 legislation other than the controversial visa earmarks system. Industry leaders are hopeful that they can continue to build on the compromise draft legislation and work towards a long-term reform plan for the EB-5 program.

At the same time, industry observers will be turning to U.S. Citizenship & Immigration Services (“USCIS”) to asses the potential implementation of new regulations for the EB-5 program which were supposed to be published in final form in February of 2018. Commentators have previously stated that the USCIS is typically reluctant to adopt new rules when Congress is debating potential legislation which will affect the EB-5 program.

I.A. Donoso & Associates, LLC will continue to monitor the situation closely and provide any new information as it becomes available.

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