Uncertainty Surrounding the EB-5 Program in Chinese Investor Community

Chad Ellsworth, Fragomen, USA – Many mainland Chinese investors imprudently try to forecast possible EB-5 Program changes including potential set-asides for rural or urban distressed projects.

On the eve of the EB-5 regional center program’s expiration on December 8, 2017, Congress once again issued a short-term reauthorization of the program, which is now set to expire on December 22, 2017. Following a long succession of temporary extensions and with ongoing substantive negotiations on changes to the EB-5 program occurring in Congress and within the U.S. Citizenship and Immigration Services (USCIS), potential investors are increasingly concerned and uncertain about the EB-5 immigrant visa option. Given the dynamic changes of each proposal, an investor’s attempt to forecast and/or predict the outcome, including eventual USCIS policies or regulations clarifying any new rules, is extremely difficult at best.

For mainland Chinese investors in particular, recent short-term extensions and ongoing legislative and regulatory proposals have created a significant amount of uncertainty, and the priority date backlog in the EB-5 visa category has, as a practical matter, rendered the program unrealistic for many mainland Chinese investors. As such, the possibility of Congress passing legislation that includes visa set-asides for investors in projects located in newly-defined Targeted Employment Areas (TEAs) has become a potential boon for Chinese investors currently subject to retrogression, resulting in a swirl of misinformation permeating the EB-5 community.

Current Scenario with EB-5 Regulations

Under current regulations, U.S. legislation allocates 10,000 EB-5 immigrant visas each fiscal year, with 3,000 set aside for regional center projects for EB-5 investors from anywhere in the world. No country is allowed to use more than seven percent of the worldwide total each year. Once the annual allocation of 10,000 EB-5 immigrant visas is reached, investors from over-subscribed countries are required to wait until a future fiscal year’s visa allocation becomes available. In recent years, the overwhelming majority of EB-5 petitions were filed by mainland Chinese nationals, and currently, mainland China is the only country experiencing EB-5 visa retrogression. While the State Department is reporting a three-year wait before Chinese nationals may proceed with consular processing or adjustment of status, as a practical matter, the actual wait time is likely 7-10 years given the extensive backlog. Thus, the potential for visa set-asides is certainly welcome news for mainland Chinese investors. However, not all investors would benefit from the possible changes in this area.

Leahy and Grassley Proposal

Currently, we understand that key senators, such as Senator Cornyn, are leading efforts to reform and amend the EB-5 program, but they are only reviewing key legislative principles and have not yet issued a draft bill. Senators Leahy and Grassley have previously introduced the American Job Creation and Investment Promotion Reform Act of 2017, which provides a glimpse into one proposal for set-asides for rural and urban priority projects. Specifically, the draft proposal by Senators Leahy and Grassley would set aside 7.5 percent of available visas for investors in rural projects and 7.5 percent of visas for priority urban investment areas in the immediate fiscal year; these would rise to 15 percent, respectively, in subsequent years. Their draft bill would also centralize the TEA designation process within the Department of Homeland Security, removing it from the state agencies that currently adjudicate this process. While we understand Congressional discussions have moved beyond the Leahy/Grassley proposal, the concepts may be instructive during the current and future legislative proposals.

Again, while proposed changes in the draft Leahy/Grassley EB-5 reform bill would provide backlog relief to Chinese investors who invest in qualifying projects, it is important to note that as with any legislation the draft bill does not provide clarity on new concepts/definitions, how implementation of the set-asides would work in practice for investors who have already submitted their I-526 petitions, or if the set-asides would apply retroactively to pending petitions at all. Any new bill, including the draft Leahy/Grassley proposal, is highly likely to include a moratorium period before any new rules would go into effect. During any moratorium period any USCIS policies and/or regulations implementing the legislation, including clarifying definitions, would be key to understanding which projects and/or investors may be favored under the new system. As noted above, trying to forecast USCIS’s prospective policies or regulations in this area is potentially perilous for mainland Chinese investors, and we strongly recommend investors engage competent EB-5 counsel to help navigate this ever-changing regulatory environment.

Both investors with pending I-526 petitions and those who are considering the EB-5 immigrant visa are rightly concerned with how any changes to the program would affect their cases. For investors with pending petitions, the primary concern is whether the set-asides would become available to them. If so, further questions remain regarding how pending applicants would be eligible to avail themselves of any future visa set-asides. Under the current program, priority date retention is not available in the EB-5 visa category, and it is not clear whether that would change. The Grassley/Leahy draft bill does not propose any changes in that regard, except in cases of regional center termination. As such, any need to refile an EB-5 application could have a major impact on pending mainland Chinese applications.

Passage of any legislation such as the Leahy/Grassley draft proposal may also further extend the visa retrogression wait times for mainland Chinese nationals who have invested in non-rural/non-urban-distressed projects. As 1,500 visas in the fiscal year 2018 and 3,000 visas in subsequent years are allocated to rural/urban-distressed projects in the Leahy/Grassley proposal, fewer visas would be available to investors in non-qualifying projects if ever implemented. Any investors forced to refile to take advantage of the set-asides would need to be mindful of likely increases in the minimum investment amount contemplated in the bill, TEA redefinition, ability to source the funds for reinvesting, age-out issues, etc.

In summary, the Senate negotiations provide hope for some mainland Chinese investors eagerly awaiting the opportunity to file EB-5 applications that are not subject to a 7-10 year backlog. Even if passed, further clarity is needed on who can and how to take advantage of any potential set-asides, and this clarity is not likely to be available until USCIS weighs in. Trying to forecast USCIS’s prospective policies or regulations in this area is potentially perilous for mainland Chinese investors in particular. Investors should consult on all of the above with competent immigration counsel before taking any action.

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