Cập nhật Bản tin #1: Sự mong đợi về việc chấm dứt Chương trình EB-5

Who are we?

The American Immigrant Investors Alliance (AIIA) is a Washington, D.C. based 501(c)(4) non-profit advocating for the interests of EB-5 investors from around the world. AIIA was established in April 2021 to provide a united voice for EB-5 immigrant investors who form the bedrock of the EB-5 program. 

As an organization whose sole focus is on EB-5 investors – both those that are already in the U.S. and those outside the U.S. awaiting their petitions to be adjudicated – AIIA strives to be the single authoritative investor-focused advocacy organization representing interests of all EB-5 investors. 

We invite you to watch our very first webinar introducing ourselves to the world:

Some Legislative and Administrative Updates on the EB-5 Program:

1. June 30: sunset of the EB-5 Regional Center program

The EB-5 Regional Center program is set to lapse on June 30, 2021, absent Congressional intervention.  We anticipate one of the following outcomes to :

Scenario 1: The Grassley/Leahy sponsored EB-5 Reform and Integrity Act is enacted on or before June 30.

At the time of writing this email, the EB-5 Reform and Integrity Act (S.831 and H.R. 2901) has 2 co-sponsors in the Senate and 18 co-sponsors in the House of Representatives. However, Congress’ historic lack of action on immigration legislation means the fate of this bill is uncertain.

Scenario 2: A short-term extension is enacted on or before June 30.

It is possible that certain forces in Congress successfully push for a short-term extension of the Regional Center program to September 30, 2021 – when the federal appropriations legislation for F.Y. 2022 must be passed.

Scenario 3: The EB-5 RC program lapses on June 30. The lapse may be temporary or permanent.

Even though this is unlikely, the lapse of the Regional Center program on June 30 is a possibility. If this happens, we are treading in uncharted waters. While the Regional Center program has lapsed for short-periods of time in the past, it was always tied to “must-pass” spending legislation – which all but assured the continuance of the program. This is not the case with the impending June 30 sunset. Any EB-5 investor who has not yet received a conditional green card will be affected. However, even if the program lapses, it is unlikely that USCIS will start denying EB-5 petitions en masse. Precedent from prior program lapses indicates that USCIS will continue accepting new I-526 and I-485 applications while holding pending I-526s, I-485s, and I-924s in abeyance, pending reauthorization. No one knows for how long USCIS will hold these petitions before starting to deny them. AIIA is exploring all possible options, including litigation, to protect investors in case of a program lapse.

2. Country Cap removal

On June 2, 2021, Rep. Zoe Lofgren (D-CA) introduced H.R. 3648, EAGLE Act of 2021. The bill, among other things, eliminates the 7 percent per-country cap for employment-based immigrant visas. While the bill still has ways to go before it potentially becomes law, it is worthwhile to discuss its possible ramifications for EB-5 investors. For people already in the EB-5 process, your visa wait time would be less than nine years if the EAGLE Act is passed, with how much less depending on how long ago you filed I-526. 

If you filed I-526 in 2018 or 2019 from any country, you could expect to wait at least over five years for conditional permanent residence, since most Chinese nationals were in the queue filed earlier than that (their filing surge occurred 2014-2017), and thus at least most of the China backlog recorded in the above chart (57,000 people) would move ahead of you in line. The elimination of the country caps will benefit the oldest Chinese applicants the most –those with filing dates from 2015 to early 2017– who could expect most available visas for the coming five years, based on their early filing dates. The wait line gets more diverse from mid-2017 on, so wait times would become long for everyone then. At AIIA we plan to advocate against any changes that would lengthen wait times for investors already committed to the process.

3. Behring Lawsuit

Behring Regional Center LLC v. Wolf et. al. seeks to invalidate the 2019 EB-5 Modernization Rule which among other things, raised the minimum investment amounts to $1.8 million and $900,000 for non-TEA and TEA investments respectively. Magistrate Judge Jacqueline Scott Corley has indicated that her interpretation of the Federal Vacancies Reform Act (FVRA) does not allow DHS Secretary Alejandro Mayorkas’ ratification of the 2019 Rule to cure its defective promulgation. There is a possibility that Judge Corley rules in favor of Behring Regional Center, thus invalidating the 2019 Rule, bringing back the minimum investment amounts to $1 million and $500,000 for non-TEA and TEA investments respectively. While the impact of such a ruling is unknown, this may lead to a flood of new investors coming in at the $500,000 level.  From the information our organization has gathered, some believe that a decrease in the minimum investment amounts will affect the legislative efforts to reauthorize the EB-5 Regional Center program. Whether that ends up being true is yet to be seen. 

Trong Behring Regional Center LLC v. Wolf et. al, Magistrate Judge Jacqueline Scott Corley may grant summary judgment in favor of the plaintiffs and invalidate the 2019 EB-5 Modernization Rule. While this ruling is expected to be appealed by USCIS/DHS to the San Francisco based 9th Circuit Court of Appeals, the EB-5 program would revert to its state before the 2019 regulations – which include minimum investment amounts of $1 million and $500,000 for non-TEA and TEA investments respectively. However, it is unlikely that investors who invested at the $900,000 level will be able to get a “refund” or “convert” their investments to the $500,000 level. Existing investors are not expected to be affected by this ruling.

What we plan to do

AIIA has developed the following strategic action plan in order to achieve our long-term goals.

• Congressional relationship-building with key Representatives and Senators focused on portraying the EB-5 program from the perspective of Immigrant Investors (We like to call this “Faces behind EB-5”). Our goal is to tackle the cash-for-visa perception that the program often carries and to provide the real human narrative behind EB-5.
• Create professional-quality EB-5 project narratives around featured projects by highlighting the immense benefits brought to American communities.
• Strategic messaging campaign with non-elected officials and allies.
• Civic engagement campaign aimed at teaching all investors the value and art of self-advocacy.
• Administrative branch outreach with DHS, DOS, IPO officials focused on program-issues; visa issues such as processing delays; and other rules and procedures which impact the quality of the immigration experience of EB-5 Immigrant Investors. 
• Forge allies through liaison and partnerships with key AILA members and immigration committees. 
• Social media campaigns, education, AIIA member resource libraries, newsletters and regular investor-clinics aimed at providing personalized support and assistance to members.

Please watch our webinar for more information regarding our advocacy efforts and how we can work on reforming the program. 

AIIA is actively advocating for reauthorization of the EB-5 Regional Center program. In addition to being essential for achieving EB-5 investors’ immigration goals, reauthorizing the EB-5 RC program will lead to continued economic benefits for the U.S. economy, especially as it recovers from the COVID-19 pandemic-induced recession.