The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.
On November 7, 2020, the Associated Press announced that Joseph R. Biden, Jr. had won the 2020 election and would be become the 46th President of the United States. President Biden’s victory could not have been more welcomed by the immigration law community after four years of the Trump Administration enacting policies, proclamations, and executive orders that severely curtailed immigration to the U.S. Arguably the most notable recent order is the ban on individuals holding both immigrant and non-immigrant visas, preventing many from returning to their U.S. jobs and homes amid the COVID-19 pandemic.
Many of the attacks on the U.S. immigration system by the Trump administration have been successfully challenged in federal court. In the last two years, prominent U.S. organizations severely damaged by his actions were some of the plaintiffs, such as universities (Guilford College in one lawsuit; Harvard and MIT in another) and business associations (U.S. Chamber of Commerce and the National Association of Manufacturers). Under the guise of putting America first, Trump’s immigration actions were damaging to wide sectors of the U.S. economy like higher education, tech, production, and as we will discuss below, investments.
After much drama throughout December and January, on January 20, 2021, Biden was sworn in as the President of the United States. His inaugural address suggested that the U.S. would “repair our alliances and engage with the world once again.” Since taking office President Biden has already taken a number of steps seeking immediately to tackle a range of issues, including helping to reset the American immigration system.
On the day of his inauguration, he issued several executive orders dealing with U.S. immigration, among other matters. These orders included a lifting of the travel ban on foreign nationals from largely Muslim-majority countries, which included Burma, Eritrea, Iran, Kyrgyzstan, Libya, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela, and Yemen (although the COVID-related quarantine requirement for foreign nationals from certain countries remains in replace) and a pause on removals with some exceptions (although the pause was blocked by a federal court).
Also on January 20, he sent the U.S. Citizenship Act of 2021 to Congress. If passed, this bill would provide a means for undocumented individuals to apply for greens cards and eventually apply for citizenship in a compressed length of time, with certain background checks and other requirements. The U.S. Citizenship Act of 2021 would also deal with the lengthy backlogs for employment-based visas and recapture unused visas. The bill would make it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States and streamline their paths to employment-based green cards. Importantly, among other provisions, the bill would also allow dependents of H-1B visa holders to obtain work authorization and prevent children from aging out of the immigration system, allowing families to stay together.
Notably, President Biden has also chosen Alejandro Mayorkas as the Secretary of the Department of Homeland Security (DHS). Secretary Mayorkas was sworn in on February 2, 2021. He is the first immigrant to serve as the Secretary of DHS, having immigrated with this family from Cuba in 1960. Secretary Mayorkas previously served as the Deputy Secretary of DHS from 2013 to 2016. Before his appointment to the Department of Homeland Security under the Obama administration, Secretary Mayorkas served as the Director of U.S. Citizenship and Immigration Services (USCIS).
While serving as the Director of the USCIS, Secretary Mayorkas was an integral part of the revitalization and reordering of the Immigrant Investor or EB-5 visa program (the fifth preference employment-based visa category of the Immigration and Nationality Act, INA § 203(b)(5)). The EB-5 program is an American job-creating immigration program. Through EB-5, immigrant investors can obtain a green card if they invest $1,800,0000, or $900,000 in a rural or economically distressed area. The investment must also create jobs for U.S. workers. The EB-5 program only allows for 10,000 visas a year and it has brought hundreds of millions of dollars into the U.S. economy and created millions of jobs for Americans. The EB-5 program was underutilized for many years but has become increasingly popular and valuable after the financial crisis in 2008.
The Biden administration’s clear and most-welcomed focus on immigration to the U.S., along with the appointment of Mayorkas, comes at a time when the fate of the EB-5 program hangs in the balance. Since the inception of the program, the EB-5 regional center program has been a “temporary” program, extended repeatedly over the past decade, and set again to expire on June 30th, 2021, unless it is renewed. However, while looming expiration and ultimate extensions have become a normal part of the EB-5 program, the fast-approaching June expiration is a different animal. The EB-5 regional center program and its extensions have always been coupled with the omnibus appropriations bill and renewed almost as a matter of course along with several other legislative initiatives. However, the EB-5 program was decoupled from the omnibus appropriation bill under the Trump administration, leaving the EB-5 program to languish unless it is explicitly reauthorized on its own. At least one bill, the EB-5 Reform and Integrity Act, introduced by Senators Grassley and Leahy, would extend the EB-5 program through 2024, and add several integrity provisions, among others. However, neither this nor any other bill has yet been passed to extend the program and ensure its future.
Given the severe financial hardship faced by a vast number of Americans and the amount of businesses desperately seeking a means to stay afloat, it would be a terrible shame to allow an immigration program focused on creating jobs for U.S. workers and encouraging millions of dollars to flow into the economy, to simply expire. With the Biden administration’s focus on again allowing America to be a haven for immigrants from all over the world, as well as its concrete plan to revitalize the American economy, perhaps the EB-5 program will have a secure and long-term future.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the February 10, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
