December 11 Expiration Date for Three Immigration Programs (Including EB-5)

Three significant immigration programs are slated to expire on December 11, 2015. These three programs are the:

EB-5 Regional Center Program;
Conrad 30 J Waiver Program [see article];
Special Immigrant Non-Minister Religious Worker Programs.

These three programs were originally set to expire on September 30, 2015. However, that expiration date was averted when Congress passed, and President Barack Obama subsequently signed, a “continuing resolution.” The continuing resolution is a remedy for Congress to extend previously-authorized spending in lieu of passing a new budget. The continuing resolution was set to expire on December 11, but on November 2, 2015, President Barack Obama signed a new budget that will set funding for two years. However, the the EB-5 Regional Center Program, Conrad 30 J Waiver Program, and Special Immigrant Non-Minister Religious Worker Programs were not extended in this process, and are still set to expire on December 11.

Ultimately, many expect that the three programs will be reauthorized, although possibly not without modifications. The most uncertainty surrounds the future of the EB-5 program, which is controversial with many legislators due to concerns regarding insufficient oversight and susceptibility to fraud and abuse. Roll Call reports that Congress is currently considering reauthorizing the EB5 program with modifications [link]. For example, a proposal authored by Senators Chuck Grassley (R, IA) and Pat Leahy (D, VT) would raise the minimum investment level required for the EB5 program. On the other hand, Senator and Presidential candidate Rand Paul (R, KY) has offered a proposal that would permanently reauthorize the program while maintaining the current minimum investment levels. Both Senator Paul's proposal and a proposal by House Members Jared Polis (D, CO-2) and Zoe Lofgren (D, CA-19) would stop counting derivative EB5 beneficiaries toward the annual cap on the EB5 program.

It is important to note that people who already have status under the EB5 program, Conrad 30 program, or the non-minister religious workers program should not suddenly lose status if the programs lapse. Furthermore, petitions that have already been filed and are being adjudicated before the expiration date would likely be grandfathered in even if any of the programs are allowed to lapse.

Adding to the uncertainty created by numerous proposals is the new leadership situation in the United States House of Representatives. Speaker of the House John Boehner (R, OH-8) announced on September 25 that he would resign after the Republicans selected a new House Speaker. On October 30 , 2015, Paul Ryan (R, WI-1) was chosen as the 54th Speaker of the House after the House passed the new budget. Because the Republican Party currently holds a commanding 246-188 majority in the U.S. House of Representatives, the leadership situation will have a significant effect on the future of the EB-5, Conrad 30 J Waiver Program, and Special Immigrant Non-Minister Religious Worker Programs.

Many factors bode well for the future of the three programs. The passing of a new budget takes what would have been the dominant issue for Congress at the same time as the expiration date for the three programs off the table. Furthermore, two of the programs are relatively uncontroversial, and the main proposals for the EB-5 program favor reform rather than abolition. However, while the prospects for reauthorization for all of the programs may look promising, the legislative process is often unpredictable. While perhaps unlikely, it is not impossible that one or all three of the programs could be allowed to temporarily lapse. In addition, it is likely, especially in the case of the EB-5 program, that one or all three of the programs could be reauthorized with minor or significant changes.

We here at Grinberg and Segal will be watching the developments for these three programs that are set to expire on December 11 closely, and we will be sure to post updates as new developments happen.