On March 16, 2022, the State Department released its April Visa Bulletin. Notwithstanding legislation fully revamping the EB-5 program signed a day earlier, DOS is taking the unconscionable position that it cannot issue visas for, presumably, the next sixty days:
“Statutory authorization under Division O, Title I, Section 104 of the Consolidated Appropriations Act, 2021, for the EB-5 Immigrant Investor Regional Center Program ended on June 30, 2021. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases after June 30, 2021.
The final action dates for the I5 and R5 categories have been listed as “Unavailable” for April.
The Consolidated Appropriations Act, 2022, which reauthorizes and reforms the EB-5 Immigrant Investor Regional Center Program, was signed by the President of the United States on March 15, 2022. Certain Regional Center Program aspects of this legislation go into effect 60 days after the date of the enactment of this Act. More information will be published in coming editions of the Visa Bulletin.
This is an unconscionable position to take. In the process of working to pass legislation, groups such as the American Immigrant Investor Alliance (AIIA) worked tirelessly to include grandfathering provisions to the legislation. Such text was duly incorporated into the Omnibus Bill overhauling EB-5:
(S) PROTECTION FROM EXPIRED LEGISLATION.—Notwithstanding the expiration of legislation authorizing the regional center program under subparagraph (E), the Secretary of Homeland Security— (i) shall continue processing petitions under sections 204(a)(1)(H) and 216A based on an investment in a new commercial enterprise associated with a regional center that were filed on or before September 30, 2027; (ii) may not deny a petition described in clause (i) based on the expiration of such legislation; and (iii) shall not suspend or terminate the allocation of visas to the beneficiaries of approved petitions described in clause (i).
Necessarily, every EB-5 benefit to date has been filed before September 30, 2027. USCIS and the State Department should accordingly be taking immediate actions to adjudicate pending Forms I-526, I-485, and immigrant visa applications associated with regional center investments.
Moreover, the State Department’s unconscionable position will result in the wastage of visas whereby nearly double the “normal” amount of visas are available due to family-based spillovers from Fiscal Year 2021, when most consulates were closed due to COVID and other, less justifiable, reasons.
Barring a change in the State Department’s interpretation, we will be incorporating into our upcoming EB-5 suit a count seeking a declaratory judgment that benefits can, and should, be processed immediately.