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EB-5 Investor, Other Immigration Programs Set to Sunset Sept. 30 Unless Reauthorized by Congress

Dilip Patel


Once again we are at that time of year when four popular programs – the EB-5 “Regional Center” Visa Program, the Conrad 30 Waiver Program for Foreign Physicians, the E-Verify Electronic Employment Verification Program, and the Religious Workers Immigrant Visa Program – will sunset unless reauthorized by Congress. All four programs have been extended numerous times, but often at the last minute and without any change. This year, as in the past, the climate surrounding any kind of immigration legislation makes reauthorization – never mind change to the programs – uncertain and complex. Let’s take a look at the EB-5 and the Conrad Waiver programs.

EB-5 Program

The EB-5 program has received significant negative criticism over the past several years; many believe the program needs major changes including increasing the minimum investment, addition of integrity provisions, and redefining the certain provisions, including what is a targeted employment area (TEA). As of this writing, parallel efforts to extend the program are underway in both chambers of Congress.

In the U.S. House of Representatives, two bills have been introduced. The first, H.R. 616, the “American Entrepreneurship and Investment Act of 2015” would, in part:

  • make the Regional Center program permanent;
  • require EB-5 petition adjudication within 180 days;
  • exempt spouses and children of EB-5 immigrants from EB-5 admissions limits;
  • authorize concurrent adjustment of status filing;
  • eliminate the per-country limit for employment-based immigrants and increase the per-country limit for family-based immigrants.

The second bill, the “EB-JOBS Act of 2015,” would:

  • extend and reform the EB-5 program;
  • create a new green card category for entrepreneurs who establish start-up businesses;
  • create a new green card category for certain treaty investors who have maintained their status for 10 years;
  • create a renewable reserve of 10,000 EB-5 visas upon exhaustion of the initial 10,000.

In the U.S. Senate, S. 1501, “American Job Creation and Investment Promotion Reform Act of 2015,” would, in part:

  • reauthorize the Regional Center program for 5 years;
  • increase the minimum TEA investment from $500,000 to $800,000 and non-TEA minimum investment from $1 million to $1.2 million;
  • eliminate state authority to certify TEAs;
  • limit high unemployment areas/TEA to a single census tract; and
  • create several different restrictions on indirect job creation calculations.

It is expected that these legislative efforts will combine at some point to fast-track an extension so that Congress can take a vote when members return to Washington after the August recess.

Conrad 30 Waiver Program

The Conrad 30 Program permits each state to support up to 30 foreign physicians for a waiver of the J-1 two-year home residence requirement that attached to the foreign physician’s visa status in exchange for the doctor’s two-year service in a medically underserved area in the United States.

A bill introduced in the Senate, S. 1189, “Conrad State 30 and Physician Access Act,” would:

  • remove the sunset provisions;
  • clarify requirements of the physician National Interest Waiver classification; and
  • make technical fixes, including confirming the ability of J-2 spouses to change status to classifications other than H-4.

Ongoing Delays for Interview-Waivable Cases

Since 2013, there have been extensive adjudication delays of certain interview-waivable, family-based adjustment of status cases held at the National Benefits Center (NBC), with no real relief available while the case waits. Interview-waivable cases are those that the USCIS determines a personal interview at a USCIS field office is not required for adjustment adjudication. While in theory this is a benefit because the individual is not required to appear for an interview, in practice delayed cases are often adjudicated after a year or even longer whereas individuals scheduled for an interview at a USCIS field office normally obtain a decision and their green card within 6-8 months of filing. For the past two years, USCIS has repeatedly stated that it is trying to resolve this problem; however, delays continue. According to the latest USCIS update released on April 16, 2015, USCIS hopes to bring these cases within the regular four-month NBC processing time by the end of this fiscal year – Sept. 30. We can only hope this means all delayed cases will be adjudicated by this date and going forward all interview-waivable cases will be processed within four months.

Dilip Patel of Shutts & Bowen LLP, a Florida Bar board-certified expert on immigration law, can be reached at (813) 227-8178 or e-mail

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