The EB-5 Regional Center Program was set to expire on Nov. 21, 2019. On Nov. 18, Congress introduced a Continuing Resolution (CR) to fund the government and extend vital programs such as EB-5 through Dec. 20, 2019. Leaders hope to use the additional time to extend current operations and complete fiscal matters and other priorities before the holidays. There is an ongoing effort to include new EB-5 legislation in a legislative vehicle in December.
New EB-5 regulations published on July 24, 2019, as final will take effect Nov. 21, 2019. There is no additional phase-in for these regulatory changes. Some of the key changes listed below will immediately impact the EB-5 program: Continue Reading
As a reminder to our readers, the Obama-era EB-5 Regional Center regulations – see July post for details – go into effect Nov. 21, 2019. USCIS has published a webpage resource to help explain the implementation of the upcoming regulations here.
This is a period of significant change and activity on the EB-5 program. Clients are encouraged to stay in touch with their GT attorney, and reach out with any questions. Please check back, as this blog will be updated as events warrant.
For more on regional centers, click here.
On Nov. 18, Congressional Appropriation leadership introduced a 26-page Continuing Resolution (CR) to fund government and extend vital programs such as EB-5 through Dec. 20, 2019. Leaders hope to use the additional time to extend current operations and complete fiscal matters and other priorities before the holidays.
In addition to the extension of time, the CR allows for the extension of certain health programs and other key priorities of Congress, such as the census, military pay, highway funding, and other programs.
The House is expected to pass the CR tomorrow and then to the Senate and the president before the Nov. 21 expiration of the current CR.
For more on continuing resolutions, click here.
Today, Senators Graham (R-SC), Rounds (R-SD) and Cornyn (R-TX) introduced the “Immigrant Investor Program Relief Act” (S. 2778, the Act) proposing long overdue improvements to modernize the EB-5 program in alignment with industry and market principles. The Act reflects a fair compromise between rural and urban stakeholders providing substantial market advantages to rural and urban distressed areas while providing opportunities for “downtown” projects.
Major programmatic provisions under the Act:
Duration of Reauthorization – The program’s authorization is extended for six years through Sept. 30, 2025.
Targeted Employment Area (TEA) Definitions
Rural Area definition: The term “‘rural area” means any area that:
- is outside of the boundary of any city or town with a population of 20,000 or more people; and
- is outside of a metropolitan statistical area; or
- is within any census tract that is greater than 100 square miles in area and has a population density of fewer than 100 people per square mile.
Urban Distressed Area Definition: TEAs are limited to a single-census tract that is designated by the U.S. Treasury Department as a “Qualified Opportunity Zone,” as per the Tax Cuts and Jobs Act.
- Establishes and maintains a $100,000 differential between the two investment levels.
- New minimum investment level for TEAs is $1,000,000.
- New non-TEA amount is $1,100,000.
- These levels indexed to inflation going forward.
- 15% of visas for Rural
- 15% of visas for Urban Distressed
- Unused visas roll-over annually at the end of each year to general visa pool for access by all projects in the immediately following year
Transition Rules to New Program Requirements -90 days after date of enactment the new law takes effect. Individual I-526 petitions that were pending up to date of enactment are grandfathered and not subject to new investment amounts. Pending petitions rejected after enactment and re-filed would be subject to new investment amounts.
Backlog Relief and Suggested Additional Revenue Source – Advance Parole and work authorization.
- All pending applicants in queue (approximately 30,000) should have the option to pay a fee to enable the individual and derivatives to travel to the U.S. and obtain work authorization if they have an approved I-526 and have been waiting for 3 years.
- All new Investor Petitions would be required to pay an additional $50,000 that would go into the new fund.
- The revenues raised by the EB-5 program improvement fee/backlog fee should be maintained separately for use by Congress for programs deemed in the national interest.
Sovereign Wealth Funds (SWF) – No bar on SWF capital in projects also funded by EB-5 capital.
Premium processing for Filed Cases 120 days
Significant New Revenue Sources for Congress and the Agency
Integrity Measures to Bolster National Security and Fraud Deterrence
- DHS provided with the authority to conduct criminal background checks and obtain biometric information from individuals involved in the regional center program.
- Establish new authority for DHS to debar individuals, and suspend or terminate regional centers, based on program non-compliance.
- Clarify the authority of DHS to deny or revoke immigrant investor petitions for reasons including fraud, misrepresentation, or national security concerns.
- Establish an EB-5 Integrity Fund to provide rigorous program oversight, which would be funded by regional center program participants.
- Create thorough annual reporting and accounting requirements for regional center operators.
- Enforce strict new requirements for third-party promoters marketing or promoting regional center investment projects.
- Provide DHS with improved investigative tools to ensure that an investor’s funds are derived from legitimate and lawful sources.
- Provisions to ensure that USCIS engages in a proper and non-preferential way with any person or entity involved in the EB-5 program.
- CFIUS Reform compliance for covered transaction as per the Foreign Investment Risk Review Modernization Act (FIRRMA).
Please contact your GT attorney with any specific questions, and please watch this space for updates.
On Oct. 4, President Donald Trump signed a new “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System,” which goes into effect Nov. 3 and affects most immigrant visa applicants. This Presidential Proclamation is separate from the Public Charge Rule, which is on hold in the U.S. due to a court injunction, and its implementation at U.S. Consulates has been delayed by the Department of State.
According to the new Presidential Proclamation, with very small exceptions including refugees and asylees, applicants for immigrant visas will need to present evidence to the consular office “to the consular officer’s satisfaction” at the time of their immigrant visa interview that they will be covered by approved health insurance within 30 days of entering the U.S. or that they have enough financial means to pay for “reasonably foreseeable medical costs.” The Presidential Proclamation asserts that “lawful immigrants are about three times more likely than United States citizens to lack health insurance.” Continue Reading
Today, President Trump announced that his administration has nominated Poland as a Visa Waiver Program (VWP) participating country. Entry into the U.S. Visa Waiver Program allows citizens of participating countries to travel to the United States for tourism, business, or in transit for up to 90 days without having to obtain a visa.
President Trump stated: “…This is an important step in continuing to increase economic, security, cultural, and people-to-people connections between our two nations. Now that Poland has been nominated, the Department of Homeland Security will take necessary action, as soon as possible, to assess Poland’s entry into the program. If Poland is designated as a Visa Waiver Program country, its nationals would be authorized for visa-free travel to the United States for business and tourism. The bilateral relationship between the United States and Poland has never been stronger, and this would serve as a remarkable accomplishment for both countries.” Continue Reading
Today, the U.S. Senate approved the House-passed Continuing Resolution (CR; H.R. 4378 ) to fund the U.S. government through Nov. 21 by a bipartisan vote of 82-15. The last step in the process is the president’s signature which, according to media reports, remains likely.
Please contact your GT attorney with any specific questions and check back as matters are updated.
For more on continuing resolutions, click here.
Yesterday, House Majority Leader Steny Hoyer (D-MD) introduced a continuing resolution (CR) to fund government from end of the current fiscal year, Sept. 30, until Nov. 21, 2019. By a vote of 301-123, the House today passed H.R. 4378, the CR that will fund the government through Nov. 21.
To EB-5 advocates, this timing is significant in that this CR extends the program coterminous with implementation of the recent Obama-era regulations. This timing continues to provide the opportunity for stakeholders to advocate and negotiate needed legislated industry reforms and a programmatic “better way forward” from the Obama-era regulations.
It is widely believed that the CR will be considered by the House this week and sent to the Senate. Reports vary as to when the Senate will schedule consideration, but it is expected that clearance by the Senate and signature of the president will occur prior to Sept. 30 (the fiscal year deadline). It is, as of this writing, believed that there will be no government shutdown over this CR.
CRs have become necessary in recent years to keep government open. The good news is such processes are available and being used to keep government open. The bad news is that this process may need to be utilized several more times this Congress due to spending differences between the House, Senate, and White House.
From Politico Pro: Congress has enacted one or more continuing resolutions “in all but three of the last 43 fiscal years,” the Congressional Research Service noted in an April report.
Please contact your GT attorney with any questions and please check back, as we expect more CR and end-of-year activities.
For more on continuing resolutions, click here.
Jennifer Hermansky and Fang Xie, Ph.D., attorneys from global law firm Greenberg Traurig, LLP, have been named to Law360’s 2019 Rising Stars. Hermansky and Xie, named an Immigration Rising Star and a Life Sciences Rising Star respectively, were recognized among 175 attorneys from 1,300 submissions, spanning 39 practice areas. The list highlights attorneys “whose legal accomplishments transcend their age,” according to Law360.
To read the full press release, titled “Jennifer Hermansky & Fang Xie Named Law360 Rising Stars,” click here.