Saturday, June 11, 2016

USCIS Changes to EB-5 Program Appear Imminent

(Source: Homeier & Law) DHS has just publicly announced its intention to propose and carry out “updates” (i.e., significant changes) to the EB-5 Program.

USCIS (an agency within DHS) has made frequent mention on recent Stakeholder Engagements and at industry conferences of its conviction that it has the rulemaking authority to unilaterally change the Program’s regional center rules, notwithstanding the absence of formal legislation in Congress.

Last week, DHS published Rule RIN 1615-AC07 in the Unified Regulatory Agenda entitled, “Improvement of the Employment Creation (EB-5) Immigrant Regulations.”  According to the rule, “[u]nique EB-5 program issues which will be addressed in the updated regulation are:  the designation of Targeted Employment Areas; indirect job creation; the required investment amount; material changes effect on conditional residency; the regional center designation process; and monitoring for regional center compliance.”  See: http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201504&RIN=1615-AC07

Last year’s Senate Bill 1501 addressed all these same issues; and integrity provisions from that bill have been included, for the most part, in the Senate and House EB-5 Integrity Acts introduced in their respective chambers during the past several months.  EB-5 industry stakeholders, including IIUSA, the EB5 Investment Coalition, and the EB-5 Securities Roundtable, are currently engaging Congress on the initial and pending legislation, which remains a work in progress.  It appears that in the meantime, USCIS will propose, and make, changes to the EB-5 Program on its own, very likely before the Regional Center Program’s current sunset date of September 30, 2016.

Clients and colleagues are cautioned to be prepared for significant changes to the EB-5 Regional Center Program over the next four months stemming from USCIS’ actions.

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