The EB-5 Immigrant Investor Visa program has been a boon to foreign investors and the U.S. economy. This has been especially true during the economic expansion in China and the recession in America. EB-5 has been the right vehicle at the right time. Now investors in countries like India (the second fastest growing economy behind China) and Vietnam are showing increased interest in the investment immigration program.
Speaking of “increased” and “investment,” potential EB-5 investors are once again faced with the potential of an increase in the minimum investments required to participate in the EB-5 program. Several proposals are on the table for discussion for legislation in the U.S. Congress and for regulatory reform at the United States Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security.
Several immigration reform bills have been submitted over the past several years, but none have been able to reach the floor of either the Senate or the House of Representatives for a vote. There are three bills currently pending that could initiate changes to EB-5 investment requirements if passed.
This is where the EB-5 investment question becomes a bit sticky. With Congress stuck in gridlock on immigration reform and dozens of other issues, the USCIS has indicated that, should Congress continue to fail to act, the department will exercise its own regulatory authority and introduce its own reforms. Those reforms include an as-yet-undisclosed increase in minimum investments.
However, the January 2017 Notice of Proposed Rule Making that is the basis for the DHS cited an increase of the EB-5 minimum investment from $500,000 to $1.35 million. Although the previous Final Action Date of February 2018 has passed, it was not ignored. The current Final Action Date is August 2018.
The DHS and USCIS, in cooperation with the Office of Management and Budget and the Office of Information and Regulatory Affairs, has positioned itself to act where Congress has been unable and/or unwilling to. August 2018 is three months away.
For investors, the impending increases are looming large and may be coming sooner than anticipated. Waiting for Congress is like Waiting for Godot. However, the waiting is over. The DHS and USCIS changes can be implemented without congressional approval.
The handwriting on the wall is saying that the time for waiting and indecision is over. Wise investors are defined by the wisdom of their investments. The wisdom of their investments is adjudicated on the merit of the investment versus the return. The wise investor would avoid spending $1.35 million (or $1.2 million) for something he or she could have obtained for $500,000.
We strongly recommend investors who are considering immigrating to the United States via the EB-5 Immigrant Investor Visa program to contact us right away so that we can begin the process before investment increases are imposed.
The attorneys at American Corporate Services Law Offices, Inc. understand the complexities of U.S. Immigration Law and are highly skilled at ensuring that our clients are fully equipped to understand the process and prepared to succeed with their petitioning process and gaining their Green Card as quickly and efficiently as possible.
The situation continues to be fluid as we monitor U.S. congressional action on the approval of the spending bill currently under discussion. The latest news we have from our sources is that the proposed reforms to the EB-5 structure and process being considered in the legislative body will not make it into the spending bill.
That means that, once again, Congress will pass an omnibus bill that will move the expiration date of the EB-5 program and several other government projects out to September 30th of this year. The omnibus bill, like the several others that have preceded it, simply keep the programs funded as is “to keep the government going.”
What does that mean for potential EB-5 investors? It means that the EB-5 program will continue unchanged until September 30th or until an Immigration Reform bill is passed, whichever comes first. This means that potential investors could have up to six months of uncertainty regarding when changes will be made.
However, the Department of Homeland Security and the USCIS could choose to implement new regulations as a bureaucratic action. The DHS issued proposed rule changes for public review on January 13, 2017. The Secretary of the DHS is allowed by law to amend certain immigration regulations and “to administer and enforce the immigration and nationality laws, including establishing regulations as the Secretary deems necessary to carry out his authority.”
The regulations proposed by the DHS and USCIS include raising the minimum investment amount to $1.8 million and raising the minimum investment amount in a TEA project to $1.35 million. There are several other changes that could be administered, but the change in the minimum required investment is of utmost concern for potential investors.
Because the Office of the Federal Register indicates that federal agencies can begin administering a final rule within 30 to 60 days, it is possible that the DHS could implement the increased investment amount (and other clauses) in the proposed rule at any time, leaving investors scurrying to avoid the increase with little or no practical time to begin the process.
Therefore, ACS, Inc. strongly urges anyone considering entering the U.S. via the EB-5 process to contact us immediately so that we can get ahead of the curve and ahead of the crowd of applicants that is certain to increase dramatically ahead of any change.
It looks like we could be about to experience some movement on the immigration debate in the United States Senate.
The status of the EB-5 program remains unchanged with the passing of a continuing resolution that extends the program (along with many other federal programs) until March 23, 2018. The status of the program beyond that point remains uncertain.
However, Congress will be addressing proposed immigration reform this week as Senate Majority Leader Mitch McConnell (R-KY) will open debate on H.R. 2579 (Broader Options for Americans Act) on the Senate floor this afternoon (February 12, 2018).
Although the bill deals primarily with healthcare matters, “the measure is expected to be the vehicle for immigration legislation” during the period of open debate.
As usual, it is too early to speculate what might transpire, although DACA and other immigration concerns will likely hold the most general attention from the media and the public.
There are generally two potential areas considered ripe for change. The first is the minimum investment amount for EB-5 Investment Immigration Visa petitioners. The second is the status of the Regional Center Program in which investments are aggregated into a single fund as a new commercial enterprise and become part of the funding stack for multi-million-dollar projects.
A change to the minimum investment would affect both the direct and indirect investments. Changes to the Regional Center program could affect petitioners who are already at points in the process. It is likely that the definition of Targeted Employment Areas will be addressed as well.
The highly-publicized DACA protections end on March 5, 2018, so the matter of addressing the virtual plethora of long-standing immigration issues seems, at long last, to have a deadline. Some observers believe that lawmakers want to get the entire matter resolved in one fell swoop. Should this not be accomplished, we are likely to see another omnibus bill extending funding for the EB-5 program through the end of the current fiscal year (September 30, 2018).
On a final note, there may be an unexpected boon for EB-5 investors. If Congress should eliminate the Diversity Visa program and maintain the same total number of visas, 50,000 will become available. It is possible that some of these could be allocated to EB-5 investors.
Whatever changes are made – if any – would be implemented with an effective date at least 60 to 90 days after signed into law by the President.
While the outcome remains uncertain, Americans and foreign national investors, have a reasonable expectation of some resolution.