While immigration lawyer Carolyn Lee is an advocate of the EB-5 Reform and Integrity Act of 2021, and optimistic about its passage into law, she acknowledges that reauthorization is not a given. If the program lapses, what then? “We do not have definitive authority that addresses this question,” Lee says. “However, we do have precedent.” She points to a past USCIS update that answered this question in 2009. Pending I-526 petitioners, according to that update, would be held in abeyance until reauthorization; if reauthorization never occurred, they would be adjudicated for direct jobs only.
The USCIS update in 2009 addresses how the Immigration Service would would regard current EB-5 investors, future investors and regional centers.
I-526 petitions filed before sunset: “Held in abeyance for ‘indeterminate period of time’ until reauthorization; if no reauthorization, then adjudicated for direct jobs”
I-526 petitions filed after sunset: “Must show direct job creation”
I-485 petitions filed before sunset: “Held in abeyance”
I-485 petitions filed after sunset: No statement was given by USCIS but Lee says “presumably receipted and held in abeyance”
I-829 petitions filed before sunset: “Unaffected”
I-829 petitions filed after sunset: “Unaffected”
Regional center proposals filed before sunset: (this notice pre-dated Form I-924): “Held in abeyance; if no reauthorization, then denial.
Regional center proposals filed after sunset: “Rejected”
It’s important to note that EB-5 reauthorization refers to the Regional Center Program; the direct EB-5 program is permanent — hence, the references to “direct” job creation in the chart Lee cites.A second point to remember is that EB-5 has lapsed as recently as the government shutdown beginning on December 22, 2018, and lasting until January 25, 2019. A lapse, or expiry, is by no means permanent, as we have seen in the past.
See Lee’s blog “Possible sunset effects on EB-5 cases come June 30, 2021”
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