Dawn of a New Era for EB-5 December 2019 Year-What to Expect for 2020


On November 21, 2019 a new era of EB-5 began when the EB-5 Immigrant Investor Program modernization regulations were published as a final rule. The regulations increased minimum investment to $900,000 and $1,800,000 for non-TEA. Moreover, USCIS severally restricted the definition of a TEA and stripped states of the right to designate TEAs. As a result, we are now in a holiday slump but hopefully 2020 will see new legislation that will reform and revive the program:

1. Regional Center Extension, With No Legislative Changes.  Congress has passed another short-term extension of the EB-5 Regional Center Program until September 30, 2020, without any legislative changes that might truly reform the program. 

2. Adjudications Taking Longer. Average processing times for I-526, I-829, and I-924 adjudications exploded in 2019, and the number of mandamus lawsuits are increasing as frustrated investors seek adjudication. 

3. EB-5 Market. There has been a precipitous decline of new I-526 filings since late November, but it is anticipated there will be an uptick in the new year as the market corrects and projects in compliance with the new regulations are rolled out. If not, the urgency for new legislation could not be more critical since the US will be losing billions in direct foreign investment and countless thousands of jobs.

4. I-924A Season. Every year Regional Centers are required to submit the Form I-924A, Annual Certification of Regional Center to USCIS on or before December 29, documenting capital investment and job creation.  This year, USCIS issued a new form, without notice, and later corrected it.  Regional Centers are allowed to use either the 12/23/16 edition or the currently posted 11/21/19 edition.

5. Regional Center Termination Binge. USCIS continues to terminate Regional Centers are a high rate and appears to require Regional Centers to continuously raise money for new projects. The fact that there are few takers for the increased amounts especially since Congress has failed to deal with Retrogression and massive backlogs in the waiting line.  Requiring investors to commit huge amounts of capital for an indeterminable period of time and to have the money repeatedly placed “at risk” indicates an EB-5 framework that is poorly thought out. Senator Rounds and Senator Rand Paul have both introduced good bills but neither seem to be gaining traction. However, this presents operational challenges for many Regional Centers, and is a “perfect storm” for the EB-5 industry. 

Wolfsdorf Rosenthal LLP is a full-service law firm that actively assists Regional Centers and immigration investors in EB-5. 

This post originally appeared on Wolfsdorf Rosenthal LLP. Reprinted with permission.

About The Author

Joseph "Joey" Barnett is a partner at Wolfsdorf Rosenthal LLP and a member of the firm’s EB-5 and business immigration practices. He is licensed as an attorney in Illinois and Wisconsin and practices exclusively in immigration and nationality law. Mr. Barnett represents immigrant investors seeking permanent residency in the United States through USCIS-designated Regional Centers and investment in their own businesses. Mr. Barnett also assists developers with the establishment of complex corporate and financing structures for EB-5 capital. He works with economists, securities lawyers, business plan writers, and other professionals to prepare Regional Center applications, amendments, and project “exemplar” approvals. As the lead member on the firm’s Chinese EB-1 team, Mr. Barnett has successfully represented Chinese executives, researchers, professors, medical professionals, engineers, musicians and artists, media and public relations professionals, and others with extraordinary ability in the sciences, arts, education, business, or athletics seek permanent residency in the U.S. Mr. Barnett also assists executives and managers in multinational companies to obtain permanent residency in the U.S. Mr. Barnett is also responsible for a variety of other immigration matters, including temporary work visas, employment-based petitions, administrative appeals, and federal writ of mandamus lawsuits.

Bernard Wolfsdorf is the past National President of the 15,000-member American Immigration Lawyers Association (AILA) and is Managing Partner of the top-rated Wolfsdorf Rosenthal LLP immigration law firm. The firm is known worldwide for providing exceptional quality legal services. With over 80 professionals including 18 lawyers, and offices in Los Angeles, New York and Shanghai, the firm provides high-quality, excellent-value global immigration services. Mr. Wolfsdorf specializes in a broad range of immigration areas, including business and EB-5 investment visas and he also handles the full range of global immigration matters.

Vivian Zhu is a partner at Wolfsdorf Rosenthal LLP and specializes in employment and business immigration cases, including immigrant petitions and non-immigrant visa applications for foreign entrepreneurs and investors, management personnel of international companies, individuals with EB-1 extraordinary ability, EB-2 national interest waiver, and alien workers. She also handles complex immigration cases such as protecting age-out derivative children under CSPA, mandamus litigation, consular inadmissibility, as well as preparing responses to Requests for Evidence, Notices of Intent to Deny, and Notices of Intent to Revoke. Ms. Zhu’s clients include Fortune 500 and medium size corporations, as well as entrepreneurs, investors, and individuals. She supervises large teams including attorneys, paralegals, and administrative staff vigilantly ensuring expeditious resolution of issues and resolves complex immigration cases. Ms. Zhu also has several years’ experience in corporate and securities laws representing companies in reverse mergers, PIPEs, initial public offerings, follow-on public offerings, and Exchange Act filings. Ms. Zhu received her Master of Laws from USC School of Law (2007 – 2008) where she worked as a research assistant in U.S.-China International Transactions. She received her Bachelor of Laws and Bachelor of Arts in English Literature from Beijing Foreign Studies University (2003 – 2007). Ms. Zhu is licensed in the state of New York and practices exclusively in immigration law. She is fluent in English and Mandarin Chinese.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.