Possible Sunset Effects on EB-5 Cases Come June 30, 2021

By Carolyn Lee

This is a practical piece. I strongly support S. 831, the bill sponsored by Senators Grassley (R-IA) and Leahy (D-VT) to extend the regional center program for 5 years, introduce strong but reasonable program oversight, and grant generous investor protections including age-out protection for defrauded investors. The beleaguered EB-5 program needs affirmative champions on Capitol Hill, a PR makeover, and stability. S. 831 delivers that. While my advocacy of the Grassley-Leahy bill continues, this piece is about what happens if we don’t get any bill passed by June 30, 2021 and the EB-5 regional center program sunsets.

Many investors are concerned and asking probing questions about their long-pending EB-5 petitions, and for new investors, whether it’s safer to wait until we have reauthorization. Indeed, it’s worth discussing seriously because unlike in past sunset scenarios, there is no upcoming must-pass appropriations bill on which EB-5 reauthorization would assuredly ride. Moreover, EB-5 is uncoupled from the other immigration pilot programs to which it has previously been attached — E-Verify, religious workers, and Conrad 30 shortage area physicians programs. Each of these programs has its own Hill champions and interest groups. The collective advocacy helped EB-5 in past sunsets also. This time around, however, we have neither the appropriations process nor the other pilot programs to carry us forward. While I remain optimistic that no matter what, EB-5 will be reauthorized in some form past June 30, it must also be acknowledged that that reauthorization is not a given.

The stage set, we return to our practical question: what does a possible sunset mean for EB-5 cases – pending and new?

We do not have definitive authority that addresses this question. There is no statute, regulation, decision or policy giving USCIS specific direction in the EB-5 regional center program context. However, we do have precedent. In past sunset scenarios, USCIS issued updates and announcements about how it will process EB-5 cases during sunset. We can expect that USCIS would undertake similar protocol if there’s a sunset and lapse in EB-5 reauthorization on June 30.

The chart below summarizes USCIS’s 2009 updates, as they are representative.

Effect of Sunset on EB-5 Cases

Pending Filed After Sunset Relevant Sunset
Form I-526 Held in abeyance for “indeterminate period of time” until reauthorization;  

if no reauthorization, then adjudicated for direct jobs 

Must show direct job creation  March 6, 2009; 

September 30, 2009 (affirmed during June 24, 2009 Stakeholder Meeting) 

Form I-485 Held in abeyance No express statement.

Presumably receipted and held in abeyance.

Form I-829 Unaffected Unaffected
RC proposals (pre-dating Form I-924)  Held in abeyance;
if no reauthorization, then denial
Rejected

 

Additionally, when the EB-5 regional center program is facing sunset, the Visa Bulletin for the first month subject to sunset typically shows EB-5 regional center visas as “U” for unavailable. This means that EB-5 visas will not be issued for that month, unless and until there is reauthorization. At that point, the visa availability will immediately revert to availability reported in the prior Visa Bulletin.

See my article explaining the various terms in the Visa Bulletin, using the January 2021 Visa Bulletin as example.

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