Will There be a Grace Period if USCIS EB-5 Regulations Are Adopted in February 2018?

Last year, the DHS accelerated its rule making schedule to adopt proposed new regulations on the EB-5 regional center program in February of 2018. The new EB-5 regulations increase minimum investment amounts, centralize TEA designations at DHS and allow for certain EB-5 petitioners to retain their original priority date should they decide to re-file their EB-5 petition.

When an agency publishes a final rule, the rule is generally effective no less than thirty days after the date of publication in the Federal Register. If the rule is a “significant” or “major” rule, as defined by law, then the rule is required to have a 60-day delayed effective date. A “significant rule”, as defined by Executive Order 12866, is any regulatory action that is likely to result in a rule that may “have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.”

Based on the content of the new EB-5 regulation, it is likely that there will be a 60-day grace period if the final EB-5 regulation is actually published in February before the final regulation will take effect. This grace period may provide Congress with additional time to reach consensus on future reforms to the EB-5 Regional Center Program.