On August 24, 2022, the parties to the Litigation reached a settlement agreement with USCIS which reauthorized previously approved regional centers and changed the previous position adopted by USCIS (the “Settlement Agreement”).  The Settlement Agreement included various key stipulations, including the following:

• Previously authorized regional centers will continue to be authorized;
• Previously authorized regional centers must file a Form I-956 no later than December 29, 2022, along with the required filing fee in order to remain authorized;
• Previously authorized regional centers are not required to wait for approval of their Form I-956 prior to filing and receiving any adjudications from USCIS;
• Previously authorized regional centers may immediately file project applications through Form I-956-F;
• If, after filing a form I-956F, a regional center does not receive a formal receipt notice within ten (10) calendar days of delivery to USCIS, investors may provide other forms of proof of the I-956F filing in their I-526E petition; and
• The failure of a previously authorized regional center to file a Form I-956 application or amendment by December 29, 2022 will not by itself be a basis for USCIS to deny an investor’s I-526 or I-829 petition.  Nonetheless, the regional center may no longer engage in any future activities under the RIA.

In addition, the Settlement Agreement provides that previously approved regional centers sponsoring new projects or new investors under the RIA shall comply with all the requirements of the RIA.  USCIS committed to amend any forms affected by the terms of the Settlement Agreement by December 1, 2022.  Finally, for at least two years from the effective date of the Settlement Agreement, representatives of the parties to the Settlement Agreement shall meet quarterly to discuss the implementation and matters related to the implementation of the Settlement Agreement.

We expect that this Settlement Agreement will finally provide much needed stability to the EB-5 Program.  It is important for regional centers to take the necessary measures to ensure compliance with the RIA and the terms of the Settlement Agreement within the time frames stated therein, as failure to do so may result in deauthorization and/or fines.

Our EB-5 Services and Compliance Practice Group members are ready to assist you to ensure proper compliance with the RIA and the Settlement Agreement.

To get in touch with our team to learn more about the EB-5 Program overall, visit our website: https://carrasquillolaw.com/contact-us/.

On June 24, 2022, the Federal District Court for the Northern District of California ruled on Friday June 24, 2022 on a motion for a preliminary injunction on the deauthorization of all formerly designated EB-5 regional centers.

The Court ruled against the United States Citizenship and Immigration Services (USCIS) and approved the motion granting the preliminary injunction.  The Court stated that USCIS is “preliminarily enjoined from treating as deauthorized the previously designated regional centers based on its almost certainly erroneous interpretation of the [Reform and] Integrity Act. Of course, the agency may do whatever is reasonably necessary to ensure that existing regional centers comply with the [Reform and] Integrity Act, but those centers must presently be permitted to operate within the regime of the [Reform and Integrity] Act.”

As a result of this ruling, EB-5 investors will be able to subscribe to an EB-5 investment and file their Form I-526 as soon as Monday, June 27.  USCIS is still allowed to take the necessary steps to ensure that all new regional center applications still comply with the requirements of the Reform and Integrity Act (the “Act”), but all regional centers have been provided with their previous designations.  As a result, regional centers that were designated as such prior to the Act, are allowed to process new Form I-526 petitions from EB-5 investors.

Pursuant to the Act, an EB-5 Regional Center must only submit a specific “application for a particular investment offering” with USCIS prior to subscribing new EB-5 investors.  Furthermore, USCIS’s pre-approval of such application is not a prior requirement for new EB-5 investors to invest and file Form I-526 in an EB-5 regional center investment offering.

It is important to remember that the Court granted a “preliminary” injunction. As a result, regional centers and investors should move swiftly to benefit from this possibly temporary windfall. While we hope that USCIS will accept the Court’s decision, USCIS will only be enjoined while the litigation is pending or until it engages in a “reasoned decision-making process” regarding how to treat existing regional centers under the Act as proposed by the Court.

Our EB-5 team at CLG will continue to monitor this litigation and keep you informed of any new developments. Should you wish to schedule a call with one of our attorneys, please contact us today.

The US Department of Homeland Security (“DHS”) and the US Department of Labor (“DOL”) announced today the publication of a joint temporary final rule to make available an additional 35,000 H-2B temporary non-agricultural worker visas for the second half of fiscal year 2022. Secretary Alejandro N. Mayorkas stated that the agencies “will apply greater scrutiny to those employers who have a record of violating obligations to their workers and the H-2B program.”  

This supplemental H-2B visa allocation consists of 23,500 visas available to returning workers, who received an H-2B visa or were otherwise granted H-2B status, during one of the last three fiscal years and the remaining 11,500 visas, which are exempt from the returning worker requirement, are reserved for nationals of Haiti, Honduras, Guatemala, and El Salvador.

As U.S. employers face difficult times meeting their hiring needs, this visa addition should help employers looking to hire temporary non-agricultural workers for the busy summer season as on March 1, 2022, USCIS had announced that it had received enough petitions to meet the congressionally mandated H-2B cap for the second half of fiscal year 2022.

After an almost nine-month lapse that left the entire EB-5 community of investors and industry stakeholders in limbo, lawmakers are breathing new life again into the EB-5 Regional Center program. The deal to renew the program was included in the $1.5 Trillion Omnibus Package that was passed by the House and will now go to the Senate.

The bill will reauthorize the EB-5 Regional Center Program for five years, through September 30, 2027. The bill contains EB-5 policy changes in the investment amount, modifications to TEA qualification rules, more regional center compliance requirements, and other changes that affect EB-5 investors and project sponsors.

According to CLG’s Roy Carrasquillo, “Investors with pending applications should see their process finally continue. This should ease a lot of the anguish that this lapse has created for so many families around the world with pending EB-5 applications. In addition, this re-authorization should provide confidence to potential investors around the world about the EB-5 Program and hopefully allow much needed capital to flow into various projects in the United States and help with job creation and economic development.”

Roy believes that “the new bill can help bring much needed stability to the industry.”

To learn more about the reauthorization, please click https://bit.ly/EB5Investors-CLG to read the full article. To get in touch with our team to learn more about the EB-5 program overall, visit our website: https://carrasquillolaw.com/contact-us/.

In tandem with this event are large amounts of CDBG Disaster Relief and Mitigation funds entering the Puerto Rican economy which are expected to jump start the local economy. This influx of funds, combined with the Judge’s decision to allow Puerto Rico to exit bankruptcy should be able to supercharge the economic improvement of the Island. Nonetheless, there have to be significant changes and adjustments to ensure permanent improvements to the economy are made so that the island does not once again wind up in an undesirable situation.

Puerto Rico’s Governor Pedro Pierluisi indicated support of the plan and noted that this “represents a great step for the economic recovery of our island.” The island’s key debtors, which include institutions such as Black Rock Financial Management Inc. and Silver Point Capital LP also indicated support of the plan.

Overall, this agreement is an overall positive for investors, who at one point held debt valued at 21 cents on the dollar of its value before Puerto Rico’s bankruptcy-like process in 2016 and the hurricanes that further destabilized the economy in 2017. We look forward to working with our clients in Puerto Rico, as well as U.S. and foreign clients who once again see Puerto Rico as an investment destination.

The COVID-19 Emergency Protect Our Small Businesses Act of 2021 provides eviction protections to tenants and small businesses that have filed a hardship declaration stating that the said business has lost significant revenue or had significantly increased necessary costs during the COVID-19 pandemic. The bill also prohibits tax foreclosures and tax lien sales and credit discrimination against small businesses that have been granted a stay of foreclosure proceedings as a result of filing a hardship declaration.

For more information about these eviction and foreclosure moratoriums, or regarding challenges to these Laws, please contact CLG and schedule a consultation with one of our attorneys.

On March 11, 2021, Congress passed the American Rescue Plan Act, which included a $28.6 billion Restaurant Revitalization Fund (“RRF”) to be administered by the U.S Small Business Administration (“SBA”). The RFF will provide tax-free grants to restaurants and other dining and drinking establishments to assist them with revenue losses resulting from the pandemic The RFF provides eligible restaurants and other food establishments the opportunity to obtain tax-free federal grants of up to $10 million to replace the loss of revenues from this unprecedented time.

Registration for RFF applicants on the SBA’s portal began on Friday, April 30, 2021.  The SBA began accepting applications from all applicants beginning on Monday, May 3, 2021, but will only process and fund applications from priority groups during the first 21 days.  Priority groups are small businesses that are at least 51 percent owned by one or more individuals who are: (i) women, (ii) veterans, or (iii) socially and economically disadvantages individuals.

The SBA has released a Program Guide dated as of April 28, 2021 on its website  that breaks down the various requirements of the RFF, including among others, eligibility (listing criteria for both eligible and ineligible entities), calculation of funding amount, eligible uses of funds, and timeframe for using funds. A sample of the application is also available on the SBA website.

The Program Guide describes eligible entities as businesses that are not permanently closed where the public or patrons assemble for the primary purpose of being served food or drink, including the following:

• Restaurants
• Food stands, food trucks, food carts
• Caterers
• Bars, saloons, lounges, taverns
• Licensed facilities or premises of a beverage alcohol producer where the public may taste, sample, or purchase products
• Other similar places of business in which the public or patrons assemble for the primary purpose of being served food or drink
• Snack and nonalcoholic beverage bars
• Bakeries*
• Brewpubs, tasting rooms, taprooms*
• Breweries and/or microbreweries*
• Wineries and distilleries*
• Inns**

We encourage these businesses to review the Program Guide and other information provided by the SBA as soon as possible and, to the extent necessary, seek the assistance of the SBA and other licensed professionals to assist them with determining their eligibility for submission of an application.  With the 21-day priority period ending May 23, 2021 and because the grants will only be available until the funds are exhausted, we recommend that you apply as soon as possible.

* In order to be eligible, these businesses must provide documentation with their application that on-site sales to the public comprised at least 33% of gross receipts in 2019. For businesses which opened in 2020 or that have not yet opened, the Applicant’s original business model should have contemplated at least 33% of gross receipts in on-site sales to the public.

** To be eligible, these businesses must provide documentation with their application that on-site sales of food and beverage to the public comprised at least 33% of gross receipts in 2019. For businesses who opened in 2020 or that have not yet opened, the Applicant’s original business model should have contemplated at least 33% of gross receipts in on-site food and beverage sales to the public.

The foregoing is only a preliminary look at the RFF program and additional information is available and should be obtained from the SBA.

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