Washington Updates

Washington Updates Page Contents:

Calendar Summary

  • November 21, 2019: Next regional center program sunset date (possibly to be extended to December 20 as part of another continuing resolution)
  • November 21, 2019: The EB-5 Immigrant Investor Program Modernization Regulation will take effect.

Summary of Recent Updates

  • 11/12/2019: Appropriators agree to a Dec. 20 funding deadline, reports The Hill. If this would be, as usual, a non-controversial “clean” continuing resolution that simply extends the deadline on the existing funding, then it would extend regional center program authorization (which is attached to existing funding) without making other EB-5 changes. (To prevent the regulations from taking effect, a bill would need to include new EB-5 provisions that trump the changes specified by the regulations — or include an extension to the deadline for the EB-5 regulations.)
  • 11/5/2019: S. 2778 the Immigrant Investor Program Reform Act is a new EB-5 bill introduced by Senators Mike Rounds, Lindsey Graham, and John Cornyn. This is the bill that New York City real estate wants. It effectively eliminates the monetary TEA incentive, and includes the shameful wait-time-lengthening visa set-aside provision. Debbie Klis summarizes the content.
  • 10/23/2019: “I understand now they’re talking about an additional CR taking us into December,” Sen. John Cornyn (R-Texas) told reporters yesterday. If that happens, it likely means another very short-term regional center program authorization. (For 2019, there were two CRs before the funding bill.)
  • 10/17/2019: Senator Durban, the senator most recently responsible for holding up Mike Lee’s S.386 proposal to eliminate the country cap on EB visas, has now introduced alternative backlog relief legislation: Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act. The bill text for S.2603 has not been published yet, but I’ll report further when I’ve read it. Cato Institute has a nice analysis of the bill’s content, implications, and (extremely slim) prospects.
  • 9/27/2019: President Trump signed H.R. 4378, a continuing resolution that keeps the government funded and the regional center program authorized through 11/21/2019.
  • 9/27/2019: Senators Chuck Grassley and Patrick Leahy have reappeared on the EB-5 scene and reintroduced a new version of their EB-5 Reform and Integrity Act, focused on integrity measures. S.2540 – A bill to reauthorize the EB-5 Regional Center Program in order to prevent fraud and promote and reform foreign capital investment and job creation in American communities
  • 9/26/2019: Now Senator Durban has stepped up to block unanimous consent to the Fairness for Highskilled Immigrants Act.
  • 9/25/2019: Senator Purdue has agreed to drop his opposition to the Fairness for Highskilled Immigrants Act. Somewhere around 20,000 past EB-5 investors and family members (all the non-Chinese still waiting on I-526 approvals), plus everyone planning on future EB-5 investment, are hoping and praying for another Senator to stand up and object to this bill. Meanwhile, 50,000+ Chinese with older EB-5 priority dates are hoping and praying the other direction.
  • 9/23/2019: There have been renewed attempts to get Fairness for Highskilled Immigrants Act through the Senate by unanimous consent, temporarily blocked by Senator David Perdue.The bill proposes to eliminate the country cap on EB visas, which would be fatal for the future of EB-5 and hurt past EB-5 investors from all countries except China. My post discusses the detail.
  • 8/27/2019: The IIUSA Mid-Year Association Update webinar reported that draft EB-5 legislation continues to circulate between unnamed Congressional representatives and people in the leadership circles at IIUSA and other stakeholder groups: EB5 Coalition, US Chamber of Commerce, Real Estate Roundtable, Rural Alliance. No word on any timetable for legislation to be made public or attached to a bill. Also no word on any challenge to regulations. Industry has received assurance that EB-5 regional center authorization will not be allowed to lapse, and would be included in a Continuing Resolution, if there is a CR instead of new funding bill as usual in September.
  • 8/21/2019: EB5 Investors Magazine reports that Rand Paul is seeking support for a joint resolution to overturn the EB-5 Modernization Regulation. Mr. Paul does not seem to be trying very hard with this resolution, however. At least, there’s no mention of it on his website or congress.gov. (He also left S.2091, an EB-5 backlog reduction bill that he sponsored, completely off his website, and hasn’t gotten a single co-sponsor for it yet.)
  • 8/12/2019: Vanity Fair gossips about Related Companies and EB-5 lobbying. What a pity that this has become the face of the regional center program.
  • 8/5/2019: IIUSA has published a post on the Mid-Year State of IIUSA Your Industry Trade Association. It expresses optimism about the future of EB-5, urges “do not believe the naysayers, the worriers, and especially the profiteers,” and foresees that “There are many reasons to believe that our cooperative efforts will produce a reform and reauthorization well before the (ill-timed) regulations ever come into effect.”
  • 7/24/2019: The EB-5 Immigrant Investor Program Modernization Regulation (RIN 1615-AC07) has been published today in the Federal Register as a Final Rule. The final rule will be effective in 120 days, on November 21, 2019. I discuss the detail in this post.

Legislation Status

Congress has periodically proposed reforms to the EB-5 program, or immigration legislation that could affect EB-5.

Current legislative proposals that could affect EB-5:

  • In September 2019, Senator Grassley and Senator Leahy reintroduced a new version of their EB-5 Reform and Integrity Act, focused on integrity measures. It’s not clear that this draft was discussed with anyone in the EB-5 industry. S.2540 – A bill to reauthorize the EB-5 Regional Center Program in order to prevent fraud and promote and reform foreign capital investment and job creation in American communities. It would give a five-year authorization to the regional center program, while also making the program very expensive to use.
  • In May 2019, IIUSA and others published a letter to the Senate and House Judiciary Committees laying out “consensus reform concepts” recommended for new EB-5 legislation. The concepts aim to reauthorize the regional center program, reduce the minimum investment thresholds for prosperous urban areas, and reopen backlogged markets by making more visas available under a set-aside proposal. Unless Congress agrees to increase visa numbers, the visa set-aside for incoming investors would have to be accomplished by reducing visas available to past investors. I discuss the detail in this post. My post also discusses the White House immigration plan broadly outlined by President Trump in May 2019. The plan mirrors the President’s 2016 campaign proposal to demote family-based immigration while replacing EB visas with a merit-based points system that prioritizes youth, education, skills, and economic position and potential.
  • A number of bills have been proposed to eliminate the per-country cap for EB visas. I discuss details in this post.
  • My log of past EB-5 legislative proposals

Regional Center Program Authorization Status

The last time Congress voted a significant regional center program extension was 2012. Since then, the program has been extended a few months at a time, in connection with government funding. All of these have been “clean” reauthorizations – with no changes besides changing the regional center program sunset date. However, major EB-5 legislation could possibly get included in a future spending bill.

The regional center program was most recently authorized to November 21, 2019 as part of the Continuing Appropriations Act, 2020 signed on September 27, 2019.

  • H.R. 4378 (p. 1-3) “The following sums are hereby appropriated… namely: Such amounts as may be necessary…for continuing projects or activities… that are not otherwise specifically provided for in this Act, that were conducted in fiscal year 2019, and for which appropriations, funds, or other authority were made available in the following appropriations Acts: … (6) … title I of division H of Public Law 116–6…Unless otherwise provided for…  authority granted pursuant to this Act shall be available until whichever of the following first occurs:  (1) The enactment into law of an appropriation for any project or activity provided for in this Act. (2) The enactment into law of the applicable appropriations Act for fiscal year 2020 without any provision for such project or activity. (3) November 21, 2019
  • This language refers back to Public Law 116-6 Division H, Title 1 (PDF page 463) which has current regional center program authorization in this sentence: “Section 610(b) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) shall be applied by substituting ‘September 30, 2019’ for ‘September 30, 2015.’”
  • This language refers back to Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (Public Law 102-395) Section 610(b) (PDF page 47), which originally established the regional center program.

EB-5 Regulations Status

The EB-5 Modernization Regulation (RIN 1615-AC07) was published as final rule on July 24, 2019, and will take effect on November 21, 2019.

Two additional rules are an earlier stage in the Rulemaking Process.

  • RIN 1615-AC11 Regional Center Program Regulation, with proposed changes to regional center designation requirements and process.
  • RIN 1615-AC26 EB-5 Immigrant Investor Program Realignment, which “will solicit public input on proposals that would increase monitoring and oversight, encourage investment in rural areas, redefine components of the job creation requirement, and define conditions for regional center designations and operations”

Q&A

  1. How can the EB-5 program be changed?

The EB-5 program can be changed through legislation, regulations, and policy. EB-5 was established by law as a permanent program in 1990, and the regional center branch of EB-5 has operated on a series of temporary authorizations since 1992. We depend on legislation to – at minimum — regularly reauthorize the regional center program.  Legislation, regulations, and policy offer paths to program changes and reforms.

Legislation: Legislation originates with Congressional representatives and must be approved by the House, the Senate, and the President

  • Legislation can change any aspect of the EB-5 program
  • Legislation established EB-5 as a permanent program, and is the only way to terminate it
  • Legislation is the only means to reauthorize the regional center program, and eventually make it permanent
  • Legislation is the primary/only path to increase or decrease available visa numbers (the alternative is to convince agencies to change their interpretation of past legislation)
  • Legislation is the path to make EB-5 program changes that would involve giving DHS significantly more power, discretion, and/or money for administering EB-5 than it had before
  • Legislative changes can, in theory, apply retroactively (though this is unpopular)

Regulations: EB-5 regulations originate with DHS, initiate a public notice and comment period upon publication in the Federal Register, get reviewed and approved (or not) for final action by the administration through the Office of Management and Budget, and finally become effective.

  • Regulations are written to help implement and fill the gaps in legislation
  • DHS recently finalized one new EB-5 rule, and has initiated the process for two additional rules.
  • The regional center program authorization cannot be extended by regulation (needs legislation)
  • EB-5 visa numbers cannot be increased by regulation (needs legislation)
  • Regulations are somewhat limited when it comes to integrity measures, since there’s a limit to how far an agency can propose to extend its power or increase its budget without approval from Congress
  • Regulations are not retroactive

Policy: EB-5 policy originates in the Investor Program Office at USCIS, and is published in Volume 6 Part G of the USCIS Policy Manual. The policy process should involve public notice and opportunity for comment. However, USCIS has recently given notice and invited feedback only after having already published the new policy and made it effective.

  • Policy translates the statute, regulations, and case law into policies to be followed by USCIS officers in the performance of their duties.
  • Policy is not supposed to set new legal standards or impose new requirements, but simply to interpret and apply existing regulations and statute.

 

  1. What happens if the regional center program is terminated?

If Congress moves to terminate the RC program, one hopes that the move will come with new language that protects good-faith regional center applicants already in the system. (I estimate about 95,000 people, regional center investors and family, are currently in the pipeline between I-526 filing and I-829 filing.) Current policy treats regional center termination as a material change that would abort the process for people waiting on a green card, but does not address what would happen were the entire program terminated.

Policy Manual 6 USCIS-PM G Chapter 4(C): Changes that are considered material that occur after the filing of an immigrant investor petition will result in the investor’s ineligibility if the investor has not obtained conditional permanent resident status. …Further, the termination of a regional center associated with a regional center immigrant investor’s Form I-526 petition constitutes a material change to the petition.

Policy Manual 6 USCIS-PM G Chapter 5(C): Further, with respect to the impact of regional center termination, an immigrant investor’s conditional permanent resident status, if already obtained, is not automatically terminated if he or she has invested in a new commercial enterprise associated with a regional center that USCIS terminates. The conditional permanent resident investor will continue to have the opportunity to demonstrate compliance with EB-5 program requirements, including through reliance on indirect job creation.

Direct EB-5 is not subject to reauthorization, and could continue as-is regardless of whether or not the regional center program is reauthorized

  1. What happens if regional center program authorization lapses as part of a government shutdown?

As a fee-funded agency, USCIS has some discretion regarding how to react to a shutdown. For reference, these articles discuss what happened to EB-5 during the December 2018 shutdown: see Client Alert, Government Shutdown Update (December 28, 2018) by Robert Blanco,  Visa Processing During the Government Shutdown (December 26, 2018), and Effects of a Potential Government Shutdown on Immigration Processing and Programs (December 12, 2018) by William Stock. During that shutdown, the EB-5 page on the USCIS website posted the following message.

The EB-5 Immigrant Investor Regional Center Program expired at the end of the day on Dec. 21, 2018, due to a lapse in congressional authorization to continue the program. All regional center applications and individual petitions are affected. USCIS will not accept new Forms I-924, Application for Regional Center Designation Under the Immigrant Investor Program, as of Dec. 21, 2018. Any pending Forms I-924 as of Dec. 21, 2018, will be put on hold until further notice.

Regional centers should continue to submit Form I-924A, Annual Certification of Regional Center, for fiscal year 2018.

We will continue to receive regional center-affiliated Forms I-526, Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status, after the close of business on Dec. 22, 2018. As of Dec. 22, 2018, we will put unadjudicated regional center-affiliated Forms I-526 and I-485 (whether filed before or after the expiration date) on hold for an undetermined length of time.

All Forms I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, filed before or after the expiration date, will not be affected by the expiration of the program.

USCIS will provide further guidance to the public if legislation is enacted to reauthorize, extend, or amend the regional center program.

  1. Would any EB-5 program changes retroactively affect people who have filed I-526?
  • If the regional center program loses authorization, that would affect people who have already filed and depend on the regional center program for continued eligibility. (See question 1 above)
  • Any legislation that affects visa allocation would affect people who have filed I-526 and not yet received conditional permanent residence. (Such changes might include visa number changes, visa set-asides, and changes to the per-country cap.)
  • Changes to investment amounts and TEA rules proposed by the regulations only apply to new petitions after a future effective date.
  • The priority date protection and I-829 process changes in the regulations will apply to people at certain stages regardless of whether they filed I-526 before the effective date of the regulations.
  • Legislation with “integrity measures” could affect previous investors by by affecting the viability of their regional center sponsors (with hurdles such as new fees, ownership restrictions, and expensive new reporting and oversight requirements)
  1. Would proposed EB-5 changes affect direct EB-5?

Changes to investment amounts and TEA definitions equally affect direct EB-5 and regional center EB-5. The main difference is that direct EB-5 does not depend on re-authorization, and integrity measures in proposed legislation have largely ignored direct EB-5.