Washington Updates

Washington Updates Page Contents:

Calendar Summary

  • September 30, 2020: Next regional center program sunset date

Summary of Recent Updates

  • 9/22/2020: The House has finished negotiating and passed a continuing resolution to avert a government shutdown. The bill (H.R. 8337, the Continuing Appropriations Act, 2021 and Other Extensions Act) is somewhat different from the one I reviewed yesterday, but with the same extension (to December 11, 2020) and the same immigration-related provisions. (See today’s House Appropriations Committee press release for the filed bill.) Regional Center program authorization is in the reference to Division I Title 1 on p. 4, and the bill includes the Emergency Stopgap USCIS Stabilization Act starting on. p. 80.
  • 9/21/2020: The House Appropriations Committee has introduced H.R. 8319, a Continuing Resolution that would extend current government funding and associated authorizations past the current sunset of September 30, 2020 to December 11, 2020. The CR includes regional center program authorization (in the reference to Division I Title 1 on p. 4, which references the previous regional center program authorization). H.R. 8319 also includes the Emergency Stopgap USCIS Stabilization Act (starting on. p. 79), which would help to address USCIS budget problems by expanding opportunities to collect premium processing fees (but still not make premium processing available to EB-5), and would put some pressure on USCIS to improve processing. This bill still faces a fight and future revisions.
  • 9/4/2020: Not that anyone remembers regional center authorization anymore, but it’s part of Public Law 116-94, Further Consolidated Appropriations Act 2020, which expires September 30, 2020. Since Congress is definitely not acting on 2021 appropriations before the election, we’re looking at another series of “continuing resolutions” that extend the 2020 funding (with the associated provisions including RC program authorization) for short periods. The Hill reports that leadership have agreed one one clean CR (clean = no changes from the 2020 authorizations), likely into December and to be followed by another CR into the new year. CRs prevent the government from shutting down, and also prevent RC program authorization from lapsing.
  • 8/25/2020: USCIS has announced that it will not furlough employees starting August 30, but threatens that “averting this furlough comes at a severe operational cost that will increase backlogs and wait times across the board, with no guarantee we can avoid future furloughs.”
  • 8/13/2020: Congress has left Washington without passing a COVID relief bill that might’ve included the supplemental funding requested by USCIS. I watch the AILA featured issues page on USCIS Budget Shortfalls and Furloughs for news on what’s next. As of this moment, looks as if USCIS plans to go ahead to furlough 67% of its workforce starting August 30 — or maybe not since it won’t actually have a budget shortfall yet at that time. We shall see. If you can’t build The Wall, try to blow up the road, I guess.
  • 8/5/2020: Another attempt to pass the Fairness for High-Skilled Immigrants Act (S.386) through the Senate by Unanimous Consent was blocked today, this time by Senator Rick Scott. This bill has been around since 2011 without passing and also without dying, which reflects two facts: the bill addresses a real and urgent problem, and the bill does not give a broadly satisfactory or fair solution to the problem. Most versions of the bill would effectively kill the EB-5 program going forward and be disastrous for many past investors, so we need to be actively working for a better alternative alternative solution to harmful backlogs.
  • 7/29/2020: The Fairness for High-Skilled Immigrants proposal to remove country caps on EB visas continues to live, reportedly. For EB-5, such a change would be very good for past investors from China and very terrible for past investors from all other countries, in terms of visa wait times. Now could be an important moment to call senators to express your opinion for or against.
  • 7/29/2020: The House Judiciary Committee held a hearing today starting at 9:30 EST on Oversight of USCIS. The testimony is worth reading, for insight into what’s been happening with processing at USCIS. The House Committee expressed bipartisan warm concern for USCIS employees, but no agreement about or specific plan for fixing the problem.
  • 7/24/2020: USCIS staff furloughs have been postponed, at least, to the end of August.
  • 7/14/2020: I continue to await consensus interpretation of President Trump’s puzzling Executive Order on Hong Kong Normalization. The order explains that the U.S. intends to punish China for undermining Hong Kong’s autonomy by supporting China’s effort, withdrawing such autonomy as the U.S. has accorded Hong Kong. (No joke — that’s actually what the order says.) Undermining Hong Kong’s autonomy for visa purposes would require changing U.S. immigration law, but the order makes quick work of that by stating that it suspends immigration law. Okay then. How will Department of State interpret this, and apply it to a backlog of Hong Kong immigrant applications that may or may not be about to get in a long mainland China line? How long will lawyers stand back and let the order pass unchallenged? How long ’til someone in the administration notices a few logical faults and backtracks? I wait with bated breath.
  • 7/1/2020: USCIS is currently negotiating with Congress for a bailout to compensate for budget problems stemming from the pandemic on top of mismanagement. The latest hardball negotiating tactic — threatening to furlough 13,400 employees if Congress doesn’t help. I suppose this gives Congress no choice, but advocacy may be needed.
  • 6/22/2020: The White House has published Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak. This extends the previous executive order (set for 60 days) to December 31, 2020, and adds additional restrictions for certain non-immigrant visas. EB-5 remains unaffected.
  • 4/22/2020: The White House has published Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak. The proclamation specifies that “The suspension and limitation on entry … shall not apply to:….any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program.” This is only logical, considering that EB-5 investors immigrate specifically on the basis of creating jobs and promoting economic growth. Limiting job-creating investors for the sake of protecting jobs would just look ridiculous, and the proclamation avoids that. Overall, the proclamation is quite focused and limited — unlike the sweeping statements made about it.
  • 3/25/2020: A decision has been made in the case of Feng Wang v. Michael R. Pompeo, in which thirteen Chinese national EB-5 investors challenged the policy of counting derivatives toward the numerical EB-5 limit, claiming it violates the Administrative Procedure Act. “The court finds that under 203 of the INA, derivative spouses and children count toward the annual worldwide limit on employment-based visas.”
  • 3/20/2020: The report that Senator Lindsey Graham contemplated attaching EB-5 visa relief to a coronavirus bill is false, according to Lindsey Graham. Listen starting at minute 2:50 in this 3/19 Fox News interview.
  • 3/6/2020: The judge denied the plaintiff’s motion for preliminary injunction in Florida EB5 Investments, LLC v. Wolf et al, the lawsuit challenging the EB-5 modernization regulation. (Pacer Monitor and Bloomberg Law.)
  • 3/4/2020: Senator Mike Lee continues to negotiate for S.386 Fairness for High-skilled Immigrants Act, with the most recent revision pushing AILA to come out against the bill. As I’ve discussed before, if this bill passes, it would be good for most past EB-5 applicants from China, disastrous for people with pending I-526 from elsewhere, and a damper on new EB-5 investment from any country for about the next five years.
  • 2/26/2020: Representatives Cardenas (D-CA) and Stivers (R-OH) introduced H.R. 5971 Case Backlog and Transparency Act of 2020. This bill refers back to P.L. 106-313, which was passed in the year 2000 with this beautiful sentence in section 202: “It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.” (p. 12) H.R. 5971 proposes to revive that deadline, and require DHS to report in detail on backlog reduction efforts.
  • 1/7/2020: IIUSA offers a Semi-Annual Association and Legislative Update webinar to the public on January 15.
  • 12/20/2019: The President has signed H.R.1865, the legislative vehicle for the Further Consolidated Appropriations Act. This extends the regional center program without change to September 30, 2020.
  • 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: 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

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 September 30, 2020 as part of H.R.1865 – Further Consolidated Appropriations Act, 2020 (PL 116-94) which became law on December 20, 2019.

  • Public Law 116-94 Division I, Title 1 Immigration Extensions (PDF page 486) 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, 2020’ for ‘September 30, 2015.’”
  • This 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.

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:

  • S. 2778 the Immigrant Investor Program Reform Act is a new EB-5 bill introduced by Senators Mike Rounds, Lindsey Graham, and John Cornyn. My post discusses the detail.
  • 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 the Fairness for High-Skilled Immigrants Act in this post.
  • My log of past EB-5 legislative proposals

EB-5 Regulations Status

The EB-5 Modernization Regulation (RIN 1615-AC07) was published as final rule on July 24, 2019, and took 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.