Immigrant Investor Program Hits Roadblock in Restart Process

Advocates for an immigrant investor visa program reauthorized by Congress in March after a nearly nine-month lapse are raising alarms over federal guidance that could halt restart plans.

When they passed a $1.5 trillion fiscal 2022 spending package last month, lawmakers included a provision reauthorizing the EB-5 regional center program, through which investors can apply for green cards by putting up funding for large enterprises dubbed regional centers. Prior authorization for the program expired amid a legislative deadlock last June.

The reauthorization was the result of protracted bipartisan negotiations to tighten program safeguards. But industry groups say the actual restart has been thrown into doubt by U.S. Citizenship and Immigration Services guidance issued last week that said existing regional centers would no longer be considered authorized. Instead of certifying their compliance with safeguards under the new law, the enterprises must reapply to be designated as regional centers.

“This approach is equivalent to killing a fly with a cannon,” said Aaron Grau, executive director at Invest in the USA, a regional center trade group. “The unintended consequences are huge.”

The guidance means regional center enterprises—largely real estate or infrastructure projects—will be blocked from seeking new funding from foreign investors pending their reapproval, advocates say. And investors who had put money into those projects in hopes of securing a green card face new uncertainty after a nearly year-long freeze on the regional center program.

A USCIS spokesman declined to comment on the hitch, referring instead to the agency’s alert on passage of the reauthorization law.

New Safeguards

Congress created the EB-5 visa category in 1990 to allow immigrants who invest a certain amount in new enterprises and create at least 10 jobs to secure a green card. Two years later, lawmakers created a pilot program for regional centers, which allowed multiple investors to pool their resources into larger projects.

The regional center program required periodic reauthorization by Congress, but lawmakers failed to reach agreement on a deal last June adding new safeguards to the program, leaving it in limbo for more than eight months before last month’s reauthorization, which takes effect May 14.

The reauthorization raised the minimum investment amount in a regional center required to secure a green card, tightened the definition of targeted employment areas requiring lower investment amounts, and added integrity measures such as new reporting requirements.

“They were really trying to control the process to where there’s full transparency,” said Ronald Fieldstone, a partner at Saul, Ewing, Arnstein & Lehr.

But requiring the regional centers to go back to square one for approval will further delay their ability to seek funding from new investors, he said.

Regional center businesses fear these latest USCIS requirements will further disrupt business operations and jeopardize the future of investors, said Jon Baselice, vice president of immigration policy at the U.S. Chamber of Commerce.

“In reauthorizing and reforming the EB-5 Regional Center program last month, Congress intended to provide certainty for both businesses and investors going forward,” he said. “USCIS’ actions thus far have only raised new concerns for stakeholders.”

Green Cards in Doubt

About 80,000 green card applications have been in limbo since the investor visa program was put on ice—a number that includes those for the spouses and children of investors.

The reauthorization law includes new benefits for investors, including the ability to simultaneously apply for the EB-5 program and a green card while in the U.S. and to transfer to a new regional center if an existing one is terminated.

But designating existing regional centers as unauthorized means those pending green card applications could be rejected, said Laura Foote Reiff, an attorney at Greenberg Traurig LLP.

“If regional centers aren’t in place, all of them are going to be denied,” she said. “Existing investors who have been waiting a long time to have petitions adjudicated are really worried they could lose their green cards and have to start all over again.”

Industry supporters have pressed members of Congress to make the case that the guidance should be dropped, said Marty Cummins, president at Florida EB5 Investments, a regional center business.

“We’re hoping that USCIS corrects its mistake sooner rather than later,” he said. “My opinion is that if this is not corrected, there will be a lawsuit—probably many.”

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