What will happen if the EB-5 Regional Center Pilot Program sunsets?

As many of you have been hearing ad nauseum, the EB-5 Regional Center Pilot Program is scheduled to sunset on September 30, 2012. For the avoidance of confusion let me make it clear that the subject of the potential sunset is NOT the EB-5 visa program but the Regional Center Pilot Program. The Pilot program was introduced in 1993 to make EB-5 investments more attractive. By investing in a Regional Center project, the investor is allowed to count indirect jobs that are created in the region, making it possible for even more investors to be pooled for a given project than in a non-Regional Center Program. So even if the Pilot Program is not extended, investors will continue to be able to invest the minimum investment amount ($500,000 in a Targeted Employment Area (TEA) or $1,000,000 in non-TEAs) and obtain a greencard as long as 10 direct, full-time jobs are created.

First, I must point out that the Pilot Program has always been extended every three years since its introduction in 1993. Second, there is a lot of activity to ensure that the required votes can be secured to extend the program or even make it a permanent part of the law so that we won't have to scramble like this every three years. And finally, there will be a lot of people who potentially have a lot to lose if the program is not extended, while nobody really stands to benefit. That said, there is always a first time for everything so this is a legitimate concern.

So what will happen? Well, nobody knows for sure now, and when asked, the USCIS has declined to discuss the matter. We can, however, turn to USCIS guidance in 2009 for a clue of what might happen. In 2009, the Pilot Program was set to expire on March 30 and because Congress could not make up its mind, it extended 6 months until September 30, 2009 as a first step. (Kind of reminds you of the whole debt ceiling debacle, albeit on a smaller scale.) Then as September 30 drew nearer and nearer and the extension didn't happen, USCIS was finally forced to issue some guidance on what they planned to do IF the program wasn't extended.

Basically what they said was the following:

1. I-526 petitions that are submitted by September 30 will not be affected.
2. Any I-526s that come in after September 30 will be accepted but we will adjudicate based on the project's ability to create direct jobs and will disregard any indirect jobs.
3. All pending Regional Center applications (at the time the I-924 didn't exist) will be "held in abeyance" if they count indirect jobs (which if you think about it, they all do because that's the whole point of a Regional Center). 

So assuming they adopt a similar plan of action this time around what this means is the following:

1. If you are a potential investor debating whether or not to apply for EB-5 through Regional Centers (in other words, you are not interested in setting up your own business for the greencard), you should probably act quickly. Even if your I-526 is not approved by September 30, 2012, as long as it has been submitted, you are okay.
2. Same as #1. (Because the possibility of a Regional Center project having enough direct jobs to save your petition is very small.)
3. If the program is not extended and you have an I-924 pending, they won't throw it in the paper shredder just yet, because there is always a possibility that Congress will get its act together and "reauthorize" the program even if it doesn't "extend" by the deadline. (Click here to read my thoughts on whether you should be applying for a Regional Center under these uncertain circumstances.)

Click here for the USCIS's guidance on the issue published in September of 2009. (Note how the USCIS never takes down old memo from its website. That's why it is dangerous to google your way around the internet for legal advice. All the old stuff is still floating around like this.)