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The EB-5 Pilot Program Extension: Post Mortem

by Carolyn S. Lee

Domestic EB-5 regional centers, along with foreign immigrant investors, breathed a collective sigh of relief two weeks ago when Congress extended the EB-5 regional center pilot program.

As background, Congress created the EB-5 program in 1990. The EB-5 category has an unfathomed well of immigrant visas numbering a shade under 10,000. Congress created the immigrant investor pilot program in 1992, under which economic units called "regional centers" may seek U.S. Citizenship and Immigration Services (USCIS) designation to concentrate pooled investment in defined economic areas needing rejuvenation.

Since its inception, the pilot program has been extended without much ado. This year was an exception. The pilot program was poised to sunset on September 30, 2008, and Congress was hardly eager to touch anything related to immigration. Even with a program as uncontroversial as the EB-5 program, supported by legislators on both sides of the aisle, its fate was far from certain. It looked like the curtain might come down, with an intermission of unknown length.

In the meantime, those of us in the EB-5 bar asked USCIS what it intended to do after September 30 with all the pending EB-5 petitions if there was no reauthorization. FTIRCP (Foreign Trader Investor Regional Center Program), the unit within USCIS overseeing the EB-5 program, stated that it had drafted answers - i.e. had thought about the issues - but that it had to be cleared with the higher ups before they can be released.

Well, some answers came down in dribs and drabs. We learned that USCIS would hold the petitions if there was a sunset for a specified period of time (until January 1), and would begin adjudication if there was reauthorization within that period of time. Otherwise, the petitions would be returned. We also learned that USCIS would continue to process adjustment of status applications for investors whose I-526 petitions were approved before September 30. That was unequivocal good news. We had to get a bone thrown at us in all this mess at some point, right? We didn't know how the State Department would treat immigrant visa applications, however. If the National Visa Center had started immigrant visa processing before September 30, would it continue processing the case thereafter? If the process hadn't started before the sunset, would the investors be shut out altogether until reauthorization? What if they were just awaiting their interviews? What if they had their interviews, got their immigrant visas and just needed to come in to start the two-year clock on conditional residency? Would they be allowed to do that? Questions, questions, questions - absorbed like light in a black hole in the vacuum created by a Congress that's checked its equipment at the door.

Things looked grim.

Then suddenly, an extension! The EB-5 regional center pilot program was extended by a continuing resolution, a bill that funds the overall federal government! But it's only good until March 6, 2009. The victory balloon fizzled mid-flight. Continuing resolutions mean that Congress can't get its act together to draft and authorize a budget in time to fund the government for a year. It has to fund some programs piecemeal via a continuing resolution to buy itself time to get its act together to pass a mature budget that will keep the federal government going. Hey, we can just hear the Capitol Cowboys croon, "It's an election year." As if that should justify them cramming their hands in their pants pockets.

So this is all to say that while the EB-5 regional center pilot program has been extended for another five months, we should anticipate the same concern on the part of regional centers trying to plan and queue up projects in a vacuum, the same beating down the doors of Senators and Representatives to do the right thing, and the same scratching of the head as investors ask advisors: Is it safe now to give our money to the US?

Stock up on your Dramamine. It ain't over yet.

About The Author

Carolyn S. Lee is an immigration partner at Miller Mayer, LLP, in Ithaca, NY. She has spoken on EB-5 issues at various immigration conferences, including those sponsored by Carolyn has written an article covering ethical issues in EB-5 practice published at,1120-lee.shtm. She is the recipient of the 2008 recipient of AILA's Joseph Minsky Young Lawyer Award. She is also listed in the International Who's Who of Corporate Immigration Lawyers. Her info is at: Just click on More Details under her name to see her full bio.

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