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.

Investment Amounts

  • 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.

TEA Set-Asides

  • 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 2/22/19, USCIS forwarded the EB-5 Immigrant Investor Program Modernization final rule (RIN 1615-AC07) to the Office of Management

AGENCY: DHS-USCIS RIN: 1615-AC07 Status: Pending Review
TITLE: EB-5 Immigrant Investor Program Modernization
STAGE: Final Rule ECONOMICALLY SIGNIFICANT: No
** RECEIVED DATE: 02/22/2019 LEGAL DEADLINE: None

 

OMB will now begin assessment of the final rule produced by the agency via the review and comment period.

OMB is under no timetable for their review.

Please check back as we will update when additional information becomes available.

Greenberg Traurig attorney, Nataliya Rymer, was recently cited in the Notice of Proposed Rulemaking (NPRM) seeking to amend the current EB-5 regulations, which was published in the Federal Register pursuant to the Administrative Procedure Act. Rymer’s article U.S. Department of State Announces EB-5 Visas for China Unavailable Until October 1, 2014, which appeared in the National Law Review on August 23, 2014 (and is also available on GT’s EB-5 Insights Blog), was cited in connection with the language in the NPRM which seeks to address priority date retention.  To learn more about retention for priority dates and for additional information please contact Nataliya Rymer.

On Nov. 26, 2019, a complaint for Injunctive Relief and a Temporary Restraining Order was filed by Florida EB-5 Investments, LLC against the Department of Homeland Security (DHS) challenging a Nov. 21, 2019, DHS-issued final rule amending its regulations for the EB-5 program to purportedly modernize the rules (EB–5 Immigrant Investor Program Modernization, 84 Fed. Reg. 35750 (July 24, 2019). Case 1:19-cv-03573 FLORIDA EB5 INVESTMENTS, LLC v. WOLF et al.

The Rule proposed many changes to the EB-5 Program, including: (i) significant increases in the requisite investment levels; and (ii) a new targeted employment area (TEA) designation process that eliminates the input of the individual states in designating such areas in which investments are made. The complaint alleges statutory and constitutional grounds to challenge the rule, claiming that it violates the Administrative Procedures Act (APA), exceeds DHS’s authority, and violates the Tenth Amendment, among others. The complaint further alleges that the Rule’s changes impact the U.S. economy and were proposed without adequate studies or analysis.

For more on EB-5 modernization, click here.

According to multiple media sources and independently confirmed, last week U.S. Senator Rand Paul (R-KY) circulated a “Dear Colleague” letter seeking co-sponsors to a process called the Congressional Review Act (CRA) to negate the recently proposed Obama-era EB-5 regulations.

The CRA provides Congress with a 60-day window to seek sufficient support – here, 30 senators – on a Resolution of Disapproval requiring simple majority passage in both bodies, and presidential signature to negate the regulations.

According to EB-5Investors.com, a huge proponent of the EB-5 Program, Sen. Paul is seeking to stop the EB-5 modernization regulation from increasing the EB-5 minimum investment amount in targeted employment areas from $500,000 to $900,000, and the EB-5 minimum investment amount in non-targeted employment areas from $1 million to $1.8 million. He also hopes to stop the regulation from taking away, or at the very least, restricting states’ abilities to designate targeted employment areas, the blog notes.

If the new rule were to go into effect, Sen. Paul said, “…this rule may undermine the very purpose of the program, which is to create jobs and grow the economy.” This is because raising the minimum investment amount could soon make many foreign investors ineligible for the program.

If fewer foreign investors qualify for the EB-5 Program, it could mean less foreign investment in the U.S. This could have a significant impact on the U.S. economy.

The Congress will return from recess in September. We expect intense end-of-year fiscal negotiations that will include extension of the EB-5 program, Sen. Paul’s efforts, and other attempts to provide for more thoughtful legislated reforms.

Please contact your GT attorney with any specific questions, and check back here for updates.

For more on EB-5 modernization, click here.

 

After more than two and a half years, Obama-era EB-5 immigration regulations are set to be published on July 24, 2019, with an effective date 120 days after publication or Nov. 21, 2019. See EB-5 Immigrant Investor Program Modernization.

These regulations have been opposed by many industry participants, as evidenced in a letter to Congressional Leadership in May 2019.

For years all involved have called for significant reforms and modernization to the program including:

  • Integrity Measures to Bolster National Security and Fraud Deterrence
  • Long-term Reauthorization
  • Revised Targeted Employment Area (TEA) Definitions
  • Revised Investment Amounts
  • New Set-Asides for Rural and Urban Distressed Areas
  • Visa Backlog Relief

Legislators on both sides of the aisle have specifically called for integrity measures to ensure against fraud. The new regulations do not do what Congress continues to seek to do legislatively, because the agency does not have the requisite authority.

The  EB-5 rule proposed by USCIS in January 2017 proposed two critical things:

  1. Drastically increased investment amounts to $1.35 million and $1.8 million from the current amounts of $500,000 and $1 million.
  2. Changed the definition of “Urban TEAs”, the areas that – along with “Rural” – qualify for the lower investment amount.

The new proposed Urban TEAs would be in the shape of a “donut” – that is, a single census tract that is the “hole” of the donut, surrounded by a ring of other adjacent census tracts. This “donut” approach to TEAs has no precedent in any other statute or regulation that directs capital to economically-distressed areas

The final rule would do the following:

  • The new investment amounts would be $900,000 at the lower level and $1.8 million at the top level.
  • The reported rationale: These are the levels calculated if indexed to inflation from 1992, when the current levels of $500,000 and $1 million first took effect upon the program’s creation.

The new TEA definitions differ from the “donut” approach as initially proposed, by rule “tweaks” to clarify that any city or town with a population of 20,000 or more outside of a metropolitan statistical area may qualify as a TEA and substituting “contiguous” to “directly adjacent” when describing census tracts that can be added for purposes of defining a TEA (under distress criteria). This is different from the proposed rule that allowed any city or town with a population of 20,000 or more to qualify as a TEA, regardless of being in or out of a MSA. In addition, these regulations remove any mention of “geographic and political subdivisions” for special designations.

The reported rationale: DHS believes this will ensure consistency in TEA adjudications that adhere closely to Congressional intent. DHS will make these designations, which eliminates the current practice of a state being able to designate certain areas as high unemployment areas.

The EB-5 Regional Center program expires on Sept. 30, 2019. Congress and stakeholders are working on a reauthorization with much needed policy and legislative changes. If such an extension occurs, the rule published today may never take effect. Only Congress can enact all of the reforms necessary to modernize EB-5. The EB-5 regulations do not address:

  • the fraud and national security measures that we all agree are necessary.
  • the rural and urban distressed visa set aside
  • the Opportunity Zone designations in urban areas.

As stated above, implementation of the new rule is set to occur 120 days from publication, or Nov. 21, 2019.

The regulations do make changes along the lines we reported in past blogs. See A Detailed Look at the Proposed EB-5 Regulations, OMB Completes Review of Obama-Era EB-5 Regulations, and Summary: Notice of Proposed Rule for the EB-5 Immigrant Investor Program.

Please consult your GT attorney with specific questions. We will be posting additional materials as available and will be posting a comprehensive summary of all the changes shortly.

Today, OMB posted that they have concluded their review of the Obama-era EB-5 regulations. On Jan. 13, 2017, the Department of Homeland Security published a notice of proposed rulemaking to significantly raise minimum investment levels and other programmatic changes to the EB-5 program (see related GT EB-5 Insights post here). It is unclear what specific actions OMB took today in regards to the pending regulations. We will update this blog as information becomes available.

Department of Homeland Security

AGENCY: DHS-USIS

RIN: 1615-AC07

STATUS: Concluded

TITLE: EB-5 Immigrant Investor Program Modernization

STAGE: Final Rule

ECONOMICALLY SIGNIFICANT: No

RECEIVED DATE: 02/22/2019

LEGAL DEADLINE: None

COMPLETED: 06/27/2019

COMPLETED ACTION: Consistent with Change

On April 9, 2019, Rep. González-Colón (R-PR-At Large) introduced H.R.2173 – a bill to amend the Immigration and Nationality Act to reserve EB-5 visas each fiscal year for investors in new commercial enterprises in areas where a major disaster has been declared by the president.

The bill is not publicly available as of this writing, but staff informed EB-5 Insights that it proposes to set aside 100 immigrant investor visas per year for areas designated by presidential declaration to be major disasters.

Rep. González’s legislative approach recognizes the economic benefits of the EB-5 program and the ability to fund vital government programs while creating new jobs for Americans in new and creative ways.

However, the EB-5 program is in great need of long-term authorization and modernization, especially as relates to the current 10,000 annual visa cap. Due to family derivatives count and per-country caps, the actual number of annual EB-5 investors is approximately one-third of annual visas, thus restraining the economic potential of the program.

According to a recent economic study by the EB-5 Investment Coalition (linked above), EB-5 modernization, such as removing derivatives from the annual visa cap and/or expanding the annual visas available, could unleash EB-5 as an economic engine to fund vital government programs well above-and-beyond its constrained status today.

Please check back for additional information on this development and other matters as information becomes available.

For more on the economic impact of EB-5, click here.

Today, the U.S. Senate Committee on the Judiciary held an oversight hearing on the Immigrant Investor EB-5 program.  The well-attended full committee hearing focused on reported fraud within the current program and the path forward for EB-5.  The sole witness was USCIS Director Francis Cissna.

There were a few takeaways from the hearing, including:

  • Director Cissna indicated that the proposed EB-5 Modernization and Regional Center regulations may take beyond the current September program authorization date to accomplish. He indicated that other agency priorities are competing for USCIS resources at the current time.
  • When asked by Sen. Graham (R-SC) if he supported the EB-5 program, Director Cissna responded, “it’s lawful.”
  • Director Cissna stated that without needed reforms to the program, he would recommend “letting it expire.”
  • Director Cissna also advocated for legislative reform to address needed authorities for USCIS and to make programmatic changes.

The Members seemed open to reform legislation and continuation of the program citing the economic success of EB-5 in their states.

The hearing was extended due to extraneous discussion of the Administration’s “Zero Tolerance” border policies.

For more on the hearing, please visit https://www.judiciary.senate.gov/meetings/citizenship-for-sale-oversight-of-the-eb-5-investor-visa-program