When Immigration Matters

A very short window has opened for potential EB-5 investors to invest at the $500,000 level once again after various events affecting the EB-5 industry occurred this past week; On Tuesday, a Federal Judge invalidated the Final EB-5 rules that increased the minimum investment amount from $500,000 to $900,000 in 2019, effectively reverting the investment threshold back to its previous level.  On Thursday, however, efforts to re-authorize the EB-5 program, which is currently set to expire on the 30^th of June 2021, stalled on the Senate floor and will only continue once Congress returns from its 4^th of July recess. This leaves potential investors with the opportunity to invest at the $500,000 level only until the 30^th of June.

U.S. Magistrate Judge Jacqueline Scott Corley gave hope to the EB-5 industry, which has been struggling under the twofold setback of increased investment amounts and investor uncertainty following the Covid-19 pandemic.  Her ruling concluded that the Department of Homeland Security officials who were responsible for enacting the initial price increase and various other changes to the program through the Modernization Rule of 2019 had not been legally appointed according to the Federal Vacancies Reform Act of 1998 and therefore had no legal authority to promulgate the changes.  Brought before the court by Behring Co., a real estate developer and the operator of Behring Regional Center, the judge’s decision effectively nullified the Modernization Rule enacted since November 2019.  In addition to the increasing the investment threshold, the Modernization Rule also made changes to the Regional Center Program’s Targeted Employment Area (TEA) designation process, which removed States’ ability to determine their own TEA eligibility and drastically decreased the number of investments projects that qualified to raise capital through the EB-5 program.

The victory was short-lived, however, after efforts to reauthorize the EB-5 program stalled in the Senate’s last session before breaking for recess until after the 4^th of July.  Senators Grassley, Leahy and Cornyn brought the bipartisan EB-5 Reform and Integrity Bill before the Senate floor to request unanimous consent to pass the bill before the June 30^thdeadline.  The motion was, however, unsuccessful after South Carolina Senator Lindsey Graham registered an objection to the unanimous consent motion.  A short- term extension was unfortunately not brought forward to re-authorize the program while effort to conclude any legislation action continues.  This leaves the regional center to sunset until Congress gets back to work following the 4^th of July holiday.

Industry experts believe that efforts to pass legislative reform and re-authorize the program will continue once Congress reconvenes.  However, any legislative action taken will likely re-establish the $900,000 threshold and any action taken by Congress will supersede the ruling of the Behring case.  Those who are considering making use of the small window of opportunity are encouraged to act before 30 June if they wish to partake in the program at the $500,000 level.  It is possible the Government will appeal the decision and the ruling stayed meaning people who do invest $500,000 may have to now invest an additional $400,000 or depending on the terms of the regional center agreement have their $500,000 returned to them.  It is important to review the specific regional center agreement to see what will happen to the $500,000 investment if the decision is appealed before June 30, 2021 and the investor has invested at the $500,000 level. 

The EB-5 program provides its investors with legal permanent residents for the applicant, their spouse and any children aged under twenty-one years of age.

The Biden Administration has announced that it is reviving the International Entrepreneur Program, which provides foreign-born entrepreneurs a temporary immigration pathway for up to five years.  Primarily aimed at start-ups, the program will be accessible to individuals who have founded new companies within the three years prior to applying and that has attracted at least $250 000 in capital from American Investors or at least $100 000 in grants from Federal, State or local government agencies. 

The program was first introduced by the Obama administration in 2017 but was blocked from being implemented by President Trump shortly after his inauguration.   In reviving the program, the Biden administration hopes to attract promising entrepreneurs to the USA since the program not only allows its beneficiaries to legally work for their start-up companies, but it also provides work authorization for accompanying spouses.

H-1B Season is upon us.  The good news is we expect USCIS to announce the the date the H1-B Registration period begins shortly.  

Today January 25, 2021, President Biden issued a “Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease.”   In regard to both immigrants and non immigrants:

DALLAS – Managing Attorney Karen-Lee Pollak from the Dallas law firm Pollak PLLC, once again has earned recognition as a Texas Super Lawyer in 2020 by Texas Monthly Magazine based on her work in Immigration Law.

THE TRUMP PLAN

The Trump administration announced new, long-anticipated restrictions for the H-1B high-skilled visa program on October 6, 2020, some of which will go into effect this week.  The rules are "far and away, one of the most significant reforms made to the H-1B program in the past 20 years," said Deputy Secretary of Labor Patrick Pizzella.  The rule from the Department of Labor, which will go into effect Thursday morning, will change how much employers will be required to pay foreign workers they hire on H-1B visas and Green Cards, forcing them to pay workers more.  The rule may be viewed at https://s.docworkspace.com/d/ANohAcmTk6tJqNS2uqWdFA

Breaking: Tonight,  the District Court for the Northern District of California in Immigration Legal Resource Centre v. Wolf enjoined the USCIS Final Rule increasing fees.  The Final Rule was supposed to go into effect on October 2, 2020 and will not pending the final adjudication of the above referenced case.  A copy of the Order is attached at https://s.docworkspace.com/d/AC_LxhOTk6tJkISSqqWdFA

Breaking:  Tonight the House of Representatives passed a bipartisan continuing resolution to extend federal government funding through December 11 and avoid a government shutdown at the end of the month.