While immigration lawyer Carolyn Lee is an advocate of the EB-5 Reform and Integrity Act of 2021, and optimistic about its passage into law, she acknowledges that reauthorization is not a given. If the program lapses, what then? “We do not have definitive authority that addresses this question,” Lee says. “However, we do have precedent.” She points to a past USCIS update that answered this question in 2009. Pending I-526 petitioners, according to that update, would be held in abeyance until reauthorization; if reauthorization never occurred, they would be adjudicated for direct jobs only.
What USCIS has said in the past about program expiry and various petitions
The USCIS update in 2009 addresses how the Immigration Service would would regard current EB-5 investors, future investors and regional centers.
I-526 petitions filed before sunset: “Held in abeyance for ‘indeterminate period of time’ until reauthorization; if no reauthorization, then adjudicated for direct jobs”
I-526 petitions filed after sunset: “Must show direct job creation”
I-485 petitions filed before sunset: “Held in abeyance”
I-485 petitions filed after sunset: No statement was given by USCIS but Lee says “presumably receipted and held in abeyance”
I-829 petitions filed before sunset: “Unaffected”
I-829 petitions filed after sunset: “Unaffected”
Regional center proposals filed before sunset: (this notice pre-dated Form I-924): “Held in abeyance; if no reauthorization, then denial.
Regional center proposals filed after sunset: “Rejected”
It’s important to note that EB-5 reauthorization refers to the Regional Center Program; the direct EB-5 program is permanent — hence, the references to “direct” job creation in the chart Lee cites.
A second point to remember is that EB-5 has lapsed as recently as the government shutdown beginning on December 22, 2018, and lasting until January 25, 2019. A lapse, or expiry, is by no means permanent, as we have seen in the past.
See Lee’s blog “Possible sunset effects on EB-5 cases come June 30, 2021”