The EB-5 Employment Creation / Investor Program was founded in 1990. The program was created for qualified Aliens seeking Permanent Resident status (i. e. Green Cards) on the basis of their investments into the American economy, via active commercial enterprises.
Unknown to many, there are actually two flavors of EB-5 programs (the ‘default’ $1 million program and the Regional Center Investment [Pilot] Program which allows for a reduced investment of ‘only’ $500,000).
Under the default provisions of the EB-5 Program, investors who invest $1 million into a U. S. enterprise and employ no less than 10 full-time qualified workers. This program is designed for people who are actively running a business. Most likely, this aspect of the EB-5 immigrant visa category will not be affected by the potential sunsetting later this month, as we approach the new fiscal year (FY2009).
The debate is centered around the EB-5 Regional Center Program, which allows an Alien to invest $500,000 into a pre-screened, USCIS approved Regional Investment Center, in exchange for an initial 2-year conditional resident status for the investor and his/her dependents.
An investment in a Regional Center Program can be passive by nature, and does not require active participation in the business by the investor. This particular EB-5 Regional Center Program is scheduled to end (or “sunset") on September 30, 2008.
A legislative proposal, known as H. R. 5569, introduced in the House of Representatives, on March 10, 2008, and passed on June 9, 2008 is currently up for debate in the Senate. This proposal, which would extend the Regional Center program for 5 additional years, is at an impasse, because some legislators want to include other, more restrictive immigration provisions to the proposed bill.
Is the EB-5 Regional Center Program in jeopardy? Potentially, yes. As in many other situations, where certain immigration provisions are about to “sunset", USCIS has not issued guidance as to what will happen with cases submitted prior to September 30, 2008 that are considered pending.
There is speculation that USCIS may suspend accepting and adjudicating of EB-5 petitions, until Congress reauthorizes the EB-5 Regional Center Program.
Personally, I am very hopeful that the program will be extended. The Benefits of the program, and the EB-5 category in general, are obvious, and result in an all-round WIN-WIN for everyone involved.
Please keep in mind that the “traditional" EB-5 applications using a $1 million investment will not be affected by a potential sunsetting of USCIS’ Regional Investment Center Program.
Steven A. Culbreath, Esq.
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