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Does A Decision Delayed Translate To Opportunity Denied? Why You Should Act Now: What Will Happen To The EB-5 Regional Center Program?

by Karen Caco

The EB-5 Visa Program was founded in 1990 under section 203(b)(5) of the Immigration and Nationality Act (“INA”). The program was created for qualified non-US citizens seeking Permanent Resident status (Green Cards) on the basis of their investments into the American economy. There are really two EB-5 programs (the Traditional $1,000,000 Program and the Regional Center Pilot Program which allows for $500,000 investments). The “Million Dollar Green Card” refers to the Traditional EB-5 Program which exists for those investors who invest $1,000,000 into a new US enterprise and employ 10 full time workers. This program is designed for people who are actively running a business. This program is ongoing and is not the topic of this article. Rather the EB-5 Regional Center Program is what we will focus on. This Program is set up so that someone investing $500,000 into a USCIS approved Regional Center may be granted a Green Card (including spouse and all children under 21). The EB-5 Regional Center Program allows for passive investment whereby once you invest, you do not have to take active participation in the business and you still get a Green Card! This particular EB-5 Regional Center Program is scheduled to end September 30, 2008. Bill H.R. 5569 introduced on March 10, 2008, and passed in the House by voice vote on June 9, 2008 is currently stuck in Senate. This bill which will extend the Regional Center program for 5 years is stuck in Senate because certain Senators want to add other immigration provisions to the bill.

What does this mean for those of you interested in applying for the EB-5 Regional Center Program? Individuals interested in investing in Regional Centers should consider doing so immediately. USCIS has not issued guidance as to what will happen with cases submitted prior to September 30, 2008 (if the bill does not pass) that are considered pending. It is our goal to submit cases quickly and urge USCIS to adjudicate based on emergent need. In the past, with other visa categories, USCIS has suspended adjudication of cases and it could happen that USCIS may suspend adjudication of I-526 applications until Congress reauthorizes the EB-5 Regional Center Program. However we believe true emergent need exists to warrant quick adjudication of these cases.

USCIS estimates that 750+ I-526 petitions (the I-526 petition is the Application for Immigrant Investor that is submitted to USCIS) will be pending by September 2008. Approximately 80% of all EB-5 applications are filed through Regional Centers. Based on those estimates, the immediate impact from the loss of new investments and new jobs would be astronomical. Does this constitute emergent need? I think so. That being said, I am not a USCIS adjudicator. If you are considering investing in an EB-5 Regional Center, do not wait; get started immediately so that your application gets in before September 30th.

What happens after September 30, 2008? We are hopeful that the program will be extended. However no one knows for sure. Every day we are asked about filing after September 30, 2008 if the Program is not extended and the answer is, we do not know at this time. No formal guidance has been issued by USCIS. The possibility that the Program will not be extended certainly threatens Regional Center current projects and those that are in the planning stages. The monetary loss in new investments to this country is indeterminable if this occurs and thousands of new jobs would never materialize.

We maintain hope that the Senate will act in the best interests of this country and extend the Program. Traditional EB-5 applications are not affected by this bill.

About The Author

Karen Caco is the senior attorney at INTERNATIONAL IMMIGRATION SERVICES, a Naples, Florida based law firm practicing exclusively in immigration law. She is a member of the Florida bar, the American Immigration Lawyers Association and the International Bar Association. Karen advises both US based and foreign corporations plan their immigration strategies. Her practice takes her to all over the United States and worldwide where she assists businesses and individuals with all of their immigration needs. While she is involved in all facets of immigration law, her area of concentration lies in business immigration, investor visas, extraordinary ability filings, EB-5 Green Cards, H-1B visas, LIFE Act green cards and complex appeals. She has been interviewed on immigration issues many times by local and state newspapers as well as NBC and ABC networks.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.