August 2015

In its report published on Aug. 12, 2015, the Government Accountability Office (GAO) identified three areas for improvement and provided recommendations to U.S. Citizenship and Immigration Services (USCIS) in relation to its administration of the EB-5 Immigrant Investor Program. We summarized the GAO’s report here.

This article will examine the way in which three pending bills in Congress address the GAO’s recommendations. The American Entrepreneurship and Investment Act (H.R.616), the EB-JOBS Act (H.R.3370), and the American Job Creation and Investment Promotion Act (S.1501) have overlapping policy provisions designed to enhance agency oversight authority, promote program integrity, and enhance data collection. These bills provide Congress with a menu of policy ideas that answer GAO’s recommendations. In its response letter to the GAO, USCIS concurred in all of the GAO’s recommendations and agreed to implement them. Pending legislation, however, provides lawmakers with the opportunity to further support USCIS in making the changes the GAO recommended.

In its report, the GAO recommended that USCIS: 1) conduct future risk assessments of the EB-5 Program; 2) expand information collection through petitioner interviews and revised forms; 3) report immigrant investor information collected by USCIS; and 4) include a discussion about program costs and reasons for exclusion of such costs from a forthcoming study on the program by the Department of Commerce. . For the purposes of this article, we will not address the GAO’s fourth recommendation.

In the discussion underlying the recommendation for USCIS to conduct future risk assessments, the GAO cites two areas in particular. First, the GAO describes the challenges adjudicators can experience in verifying an investor’s lawful source of investment funds. Second, the GAO discusses the challenges associated with evaluating the legitimacy of an investment entity and USCIS’ limitations in dealing with suspected fraudulent investments.
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The EB-5 Investment Coalition, co-chaired by Managing Shareholder Laura Foote Reiff, joined forces with key members of the EB-5 industry to advocate the reauthorization of the program before the September 30, 2015 expiration date.

On August 5, 2015, an EB-5 Stakeholder Letter was hand-delivered to key Members of Congress of the Senate and House leadership and chairmen and ranking members of the Senate and House Judiciary Committees. A copy of the letter was widely circulated to various staff members in Congress, as well as staff of both the Senate and House Judiciary Committees.

The EB-5 Stakeholder Letter encouraged these key leaders to continue the dialogue on extending or making permanent the EB-5 program, and in coming to a consensus on the necessary reforms and changes needed for the program as the program gains even more momentum and use. With the September 30, 2015 expiration date looming, the letter brings attention to the benefits of the EB-5 program by highlighting the key projects and industries it assists through foreign capital investment. The letter also highlights the economic impact the program has had on the U.S. economy, both in terms of job growth and capital investment. Finally, the letter commends Senators and Representatives for their leadership so far and encourages continued bipartisan cooperation to achieve the program’s timely reauthorization.
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