BREAKING NEWS - The U.S Senate passes the 2022 Federal Spending Bill including the U.S. EB-5 Investor Visa Program Bill
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 30th of June 2021, stalled on the Senate floor and will only continue once Congress returns from its 4th of July recess. This leaves potential investors with the opportunity to invest at the $500,000 level only until the 30th 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 4th 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 30thdeadline. 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 4th 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.Read More
In 1990, Congress created the EB-5 Program to stimulate the U.S. economy through job creation and capital investment by foreign entrepreneurs. In 1992, Congress created the Immigrant Investor Program, also known as the Regional Center Program. The USCIS determines whether a business is eligible for treatment as a Regional Center based on the business’proposal for the promotion of economic growth. Under these programs (“EB-5 Immigrant Investor Program”), foreign entrepreneurs (and their spouses and unmarried children under the age of 21) are eligible to apply for green cards if they: (1) make the necessary investment in a commercial enterprise in the United States ($1,000,000 for a basic business or $500,000 for a business located in a Targeted Employment Area (TEA), i.e., a rural area or area with high unemployment); and (2) plan to create or preserve at least ten full-time jobs for qualified U.S. workers.Read More
The EB5 visa was launched by Congress in 1990 and is administered by U.S. Citizenship and Immigration Services (USCIS). The fundamental purpose of the program is to stimulate economic activity, capital investment and job creation through investments by foreign investors who want to live in the U.S.Read More
For the first time in the history of the EB-5 visa program, the visa quota for China has retrogressed. According to the July 2015 Visa Bulletin, EB-5 visas are now available to Chinese Citizens who filed their petitions on or before September 1, 2013.Read More
Charles Oppenheim, U.S. Department of State, Chief, Immigrant Visa Control announced that the China Employment Fifth (EB-5) preference category has become "Unavailable" for the remainder of the FY-2014 because the maximum number of visas allocated ot chinese nationals has been reached.
On June 19, 2013, the U.S. Bureau of Economic Analysis (BEA) issued a docs/bea report.pdf announcing its plan to eliminate its Regional Input-Output Modeling System (RIMS II) economic model. That model has been specifically approved by USCIS and RIMS II reports have been heavily relied upon by a majority of EB-5 investors and Regional Centers in filing their EB5 applications.
This announcement has left many in the EB5 arena wondering what type of evidence of job creation would BEA start accepting and whether USCIS would continue ot accept RIMS II modeling.
On July 3, 2014, the BEA announced its "plans to release in 2015 a modified economic model to replace the original" RIMS II model.
Former BEA economist, John Barrett of Performance Economics LLC told David Morris, Chair of the AILA/EB-5 Committee summarized the BEA News as follows:
According to Barrett, “Given this announcement by BEA, there is no reason why USCIS wouldn’t continue to recognize RIMS II as a ‘verifiable methodology'". The Benchmark Series multipliers will be produced exactly as they have in the past and therefore USCIS would be hard pressed to find a reason to reverse itself on past recognition granted RIMS II.”
If your EB5 application is through a Regional Center you must make sure that if the project is relying on indirect job creation reports that these reports continue to be valid and make sure that the reports have been approved by a qualified econoomist as to the impact of the RIMS II changes.
Lawyers representing EB-5 investors should be aware of the latest USCIS
adjudications trend challenging claims of construction jobs by means of
requiring third-party validation of construction data and regional industry
standards. Immigration lawyers should now ask the Investor's selected Regional
Center to provide such supporting evidence in advance of filing the I-526
petition or in anticipation of the RFE.
Ever since Matter of Ho, 22 I&N Dec. 206 (Assoc. Comm'r 1998),
USCIS has required the submission of a "comprehensive business plan" in the Form
I-526 filing to clarify the investor's claimed job creation projections. But
recently, the USCIS has expanded its standard requiring a more detailed and
verified analysis of any construction phase jobs.
When a Regional Center project claims a construction period exceeding 24
months, EB5 investors can claim direct, indirect and induced jobs resulting from
the construction phase activities and qualified construction expenditures. When
the business plan making such job claims is submitted to the USCIS as part of
the I-526 petition, the agency will apply the following test:
"Because construction will surpass two years, the petitioner must present a business plan with a more detailed and itemized construction timeline showing all relevant phases of the construction effort. The business plan must also provide transparent, objective, and verifiable data illustrating that the proposed construction timeline and budget are within a reasonable range when compared to industry standards."
In failing to meet this standard with an initial I-526 filing package, the
USCIS will issue an RFE for such records. In response, the Regional Center will
need to supply associated investors with an evidence package that contains
third-party opinions verifying or explaining business plan claims relating to
construction activity and assumptions. These may include following:
These are just a few examples of how a comprehensive business plan claiming
construction jobs may effectively utilize third-party verification of critical
construction data, budgets, timelines and assumptions to ensure Matter of Ho
compliance. Given the emerging USCIS trend in this area, EB5 lawyers should be
prepared to supply exhibits which contain transparent, objective, and verifiable
data illustrating that the proposed construction timeline and budget are within
a reasonable range when compared to industry standards. And note that such
third-party construction experts are not in lieu of the Regional Center's
economist calculating the job creation, but are rather in addition to the