A total of eight bills addressing reforms and changes in the EB-5 program have been introduced in the 114th Congress. Although there have been discussions and meetings with House and Senate leadership on the merits of the bills, none of them have passed yet.
The EB-5 program was instead first extended in a Continuing Resolution, as is, from September 30, 2016 through December 9, 2016. The program was then extended yet again when the U.S. House of Representatives and U.S. Senate passed another Continuing Resolution to keep the government open through April 28, 2017. These short-term extensions extended the program “as-is” with no programmatic changes.
While legislative activity regarding the EB-5 program was busy, there was concurrent activity at the U.S. Citizenship and Immigration Services (“USCIS”) to draft regulations to enhance the EB-5 program. In April 2016, USCIS held a stakeholders’ meeting to discuss with industry representatives at large the changes that should be made for the minimum investment amount, along with determining targeted employment areas, calculating job creation, and designating regional centers.
Over the summer, the U.S. Department of Homeland Services released the Fall Unified Agenda to reflect that there would be a Notice of Proposed Rulemaking (NPRM) at a date “to be determined.” The title of this rule is “Improvement of the Employment Creation Immigrant Regulations.” In November 2016, it was updated from “TBD” to January 2017. Along with a targeted date, the update included a summary of what the proposed rules would address, which includes the following: 1) Predictability and transparency in the adjudication process; 2) Clarity on eligibility requirements; 3) Priority date retention in certain circumstances; and 4) Instill integrity measures to reduce the risk of fraud and national security concerns, among others. The Statement of Need, Summary of the Legal Basis, and Anticipated Costs and Benefits, can be viewed here.
On December 20, 2016, the U.S. Office of Management and Budget (“OMB”) received a request to review the proposed rule-making, which will be reviewed by the OMB’s Office of Information and Regulatory Affairs (“OIRA”). The review period is typically restricted to 90 days, though there is no minimum number of days set, and this period of review can extend beyond 90 days by the rulemaking agency, or by the OMB director.
The OMB can then send the regulations back to USCIS with or without comments, and thereafter, the USCIS will have the opportunity to review the comments and take administrative action, typically the issuance of a notice of proposed rulemaking (NPRM) in the Federal Register. An NPRM issuance will follow with a 60-day notice and comment period in most cases. After the notice and comment period has closed, USCIS will then review and revise the rule accordingly, and can issue a final rule along with an effective date published in the Federal Register.
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