Immigration Law

Expert: EB-5 Sunset Date Keeps Attorneys Busy - Law360

Allissa Wickham, Law360, Aug. 4, 2015- "With a key provision of the EB-5 Immigrant Investor Program slated to expire in September, some attorneys are giving up their summer vacations to cope with an onslaught of client requests — but the frenzy may be unwarranted, as many believe the program will be reauthorized in the fall.

The EB-5 program provides green cards to foreign residents who invest at least $1 million in the U.S. and create 10 full-time jobs, making it highly popular with Chinese investors and real estate developers. Applicants may also qualify for the program if they invest $500,000 in a rural area or somewhere with high unemployment.

Despite the program's popularity, lawmakers have yet to pass a bill that would renew a crucial component dealing with regional centers, which expires on Sept. 30. The centers are used to pool investor funds, and roughly 90 percent of EB-5 investments go through them, according to a U.S. Citizenship and Immigration Services spokesman.

With Congress heading into its August recess without having reauthorized the program, attorneys say they've been flooded with EB-5 requests from clients ahead of the September deadline.

"It has never, ever been anywhere near this busy," said H. Ronald Klasko of Klasko Immigration Law Partners LLP, whose firm is handling "unprecedented" numbers of project preapproval applications.

Stephen Yale-Loehr, a professor at Cornell Law School and an attorney with Miller Mayer LLP, added that attorneys at his firm have "basically given up our summer vacations" to work on the influx of cases.

"Investors are spooked," Yale-Loehr said. "And we're seeing a dramatic rise in the number of investors who are trying to get their petitions filed before Sept. 30, and project developers who are trying to finalize their projects ... and that's causing increased work for both immigration attorneys and the immigration agency."

But all this nail-biting may be for naught, as several attorneys said they believed that the program would be reauthorized, although perhaps not reformed.

"Almost certainly, the program will be extended," Klasko said. "But whether it's an extension by itself or an extension with some [reforms], nobody really knows right now."

Currently, there are three major EB-5 bills on the table, including two bills in the U.S. House of Representatives, one introduced by Rep. Jared Polis, D-Colo., and one introduced by Reps. Zoe Lofgren, D-Calif., and Luis Gutierrez, D-Ill., respectively, that would make the regional center program permanent.

In the U.S. Senate, Sens. Chuck Grassley, R-Iowa, and Patrick Leahy, D-Vt., have floated a bill that would reauthorize the regional center program for five years, give the U.S. Department of Homeland Security more power to regulate the program and raise the required investment amount.

There will also almost certainly be a fourth bill from Rep. Darrell Issa, R-Calif., which may be co-sponsored by Polis, Lofgren and House Judiciary Committee Chairman Rep. Bob Goodlatte, R-Va., according to Klasko, who said he met with Goodlatte on Sunday.

That bill will likely become the "lead vehicle" on the EB-5 issue, and may include proposals from Lofgren and and Polis, he said. Klasko estimated that the tentative Issa bill would be introduced shortly after Labor Day.

"Even though there's only about 14 legislative days left before Sept. 30, they're still hoping to get something through by Sept. 30," he said.

While the final bill might be just an extension of the program, it could also include changes like an increase in the required investment amount — possibly a minimum of $1.2 million or $800,000 for a targeted employment area — and policies aimed at strengthening program integrity, according to Klasko.

And if the bill is noncontroversial enough, there's a chance it could pass on unanimous consent in the House and Senate by Sept. 30, he added.

A House Judiciary Committee aide confirmed to Law360 that Goodlatte is "looking at options to reform the EB-5 program" with a goal to reauthorize the program before the deadline. A spokesman for Issa did not immediately return a request for comment.

If the upcoming House bill does become the main piece of legislation on this issue, EB-5 stakeholders may be relieved, as attorneys noted several flaws with the Grassley bill.

For instance, it's unclear whether pending EB-5 petitions would be protected under Grassley's bill, said Glenn Cooper of GrayRobinson PA. The Senate bill also allows the Homeland Security secretary to terminate an existing regional center, which could be problematic, he said.

"There may be a good cause or reason to terminate, but the argument is that a regional center should at least be given an opportunity to argue its position, rather than just being unilaterally terminated without any due process," Cooper said.

And a proposal in Lofgren's bill to create new green card categories for startup founders also likely won't make it to the final version of the EB-5 bill, according to attorneys.

"That's biting off more immigration that we can chew," said Laura Foote Reiff of Greenberg Traurig LLP. "Those are great provisions and everything, but this is not the bill to do it in."

Reiff spoke to Law360 from an EB-5 conference attended by more than 500 stakeholders and noted that everyone was "very concerned" about the future of the program.

However, Congress may be prodded to act because three other immigrant programs — the E-Verify employment authorization program, religious workers program and rural doctors program — are also expiring, and will likely be rolled into the EB-5 legislation, according to Reiff.

"There are other constituencies that care about those three programs as well," Reiff said. "So that's going to help, I think, with Congress just doing what they need to do by Sept. 30." "