This afternoon, a draft of the Continuing Resolution (CR) began circulating in Washington, DC. The CR, which Congress will likely pass early next week, will keep the federal government running through the November election. According to Alexander Hecht, Vice President of Government Relations at ML Strategies, upon enactment, the EB-5 Regional Center Program will be extended through December 9, 2016 – the length of this current CR. “Since EB-5 was contained in last year’s Omnibus appropriations bill, it is automatically extended by a Continuing Resolution for its duration. There was no need for legislators to specifically mention EB-5 in this Continuing Resolution,” stated Hecht. Stakeholders should continue to monitor developments related to the CR, but according to Hecht, “passage in both chambers seems very likely early next week, as legislators on both sides of the political aisle are anxious to get home to focus on campaigning for the November elections.”
Doug Hauer is a Member in the firm's Corporate & Securities Practice and Immigration Practice at the Boston office. On the corporate side, he focuses on private offerings and related securities work. Doug serves as counsel to developers and businesses seeking capital through the EB-5 investor visa program. He also counsels lenders, private equity firms, and EB-5 Regional Centers on all aspects of EB-5 financing. In the immigration law space, Doug represents corporate, institutional, and individual clients in routine and complex immigration matters. He has in-depth experience advising companies on the immigration consequences of corporate restructuring.
The U.S. Securities and Exchange Commission launched several suits in 2015 over alleged fraud in connection with the EB-5 program… “I think that it’s no coincidence that timed right with the legislative changes, we’re seeing USCIS and the SEC focus more and more on enforcement, and on ensuring that the EB-5 program has integrity,” said Douglas Hauer…., who predicted that the SEC activity would spike between now and 2018.
The Mintz Levin team previously published an advisory on limiting securities litigation risks in EB-5 offerings.
My colleagues Alex Hecht and Neal Martin of ML Strategies have published an update on legislative efforts to continue the EB-5 Regional Center Program: EB-5 Regional Center Program Update: As Deadline for Expiration Approaches, Congressional Action Likely.
The recent attacks in Paris and San Bernardino are going to result in increased security checks for visa applicants at U.S. consular posts. We also anticipate Congress to at least review the Visa Waiver Program for potential changes, based on President Obama’s address to the nation. Referencing one of the San Bernardino terrorists who allegedly had come to the U.S. on the Visa Waiver Program (there is also reporting that she came to the U.S. under the K-1 visa program but we cannot verify the facts), Obama called for Congress to look carefully at the rules of the program. We don’t know what this means, but we are likely to see more restrictions to the Visa Waiver eligibility criteria in the coming months. There will certainly be more interest in Congress to make reforms relating to security and visas generally.
On a panel recently at a conference sponsored by the American Immigration Lawyers (AILA) Conference in London, I was asked why I might advise a client to file an E-2 visa application instead of seeking an L-1 visa. The answer is simple.
On June 11, 2012, President Obama signed legislation that would add Israel to the list of countries eligible for nonimmigrant E-2 treaty investor visas. This was a substantial positive development in the creation of stronger commercial ties between the United States and Israel. The E-2 visa should enhance and facilitate economic and commercial interaction between the United States and Israel. We have been in a three-year holding pattern, though, waiting for the Israeli government to create a reciprocal visa for United States citizens wishing to invest in businesses and live in Israel.
What do Facebook, YouTube and Twitter have in common? The U.S. Embassy in Tel Aviv is using all three to reach visa applicants. The goal is to educate the public in Israel about the visa process. With Israel being the app center of the universe, there couldn’t be a better way of communicating with prospective visa applicants who ask essentially the same questions. As a response to a tech-driven culture in Israel, which sends thousands of its citizens to the U.S. each year on all types of visas, the U.S. Embassy announced the launch of a video series about the visa process.
This post originally appeared on the Mintz Levin EB-5 Matters Blog.
USCIS updated its online list of terminated EB-5 regional centers on October 22, 2015. In the coming two months, regional centers are required to comply with the requirement to file their Forms I-924A in order to update USCIS on relevant job creating activity over the past year. We expect that USCIS will terminate more regional centers in the next six months where there are credibility issues over data supplied by regional centers in these filings, or where regional centers simply fail to update the agency through filing a Form I-924A. It would be fully within the realm of reasonable expectations to see at least 100 or more terminations initiated within the coming year. As USCIS uses more resources to tighten up administration of the EB-5 regional center program, and with lawmakers looking closely at the program, dormant or non-compliant regional centers may find their designations revoked.
Change is on the EB-5 horizon. With the Regional Center Program nearing its expiration and recent legislative efforts coming from lawmakers, we may see some action by Congress or the Senate before the end of September. But with the Iran deal taking center stage on Capitol Hill, how much time lawmakers will spend on EB-5 changes is simply up in the air.
One issue that we are asked about every day is whether a project or regional center should consider an exemplar filing for a new deal before September 30th, which is when a new law might take effect. The issue is relevant because any changes to the law will impact the already saturated and competitive EB-5 marketplace. Regional centers and projects are concerned that any new EB-5 legislation that is ultimately enacted might very well contain provisions regarding an increase in minimum per investor amounts for projects. This is a real concern.
Read more on the Mintz Levin EB-5 Financing Matters Blog.
On July 14, 2015, the House Judiciary Committee met to discuss oversight of the United States Department of Homeland Security (DHS). Immigration was a major topic alongside border security and global threats of terrorism, domestic terrorism and cyber-security.
What’s the temperature right now for immigration reform with the Committee?
Cold. Possibly even a deep freeze.
One congressman stated that we need to take “adult responsibility” to enforcement of immigration laws. That’s not a promising start. The concerns that surfaced involved more enforcement of the H-1B program to prevent abuse, DHS taking more steps to apprehend removable or deportable individuals in sanctuary cities, and more enforcement across the board.
For U.S. employers with very concrete concerns about retaining foreign talent, this perspective could not be more detached. The Committee is flying over this discussion at 35,000 feet, with no compass, no direction and no flight plan. From the notes, one would think that there is chaos, with criminals running the streets and DHS standing on the curb, refusing to engage in any enforcement-related activities. The Committee needs to get into the weeds to understand what needs to be fixed with our immigration system. Business goes on for U.S. employers, but failing to fix our immigration laws is costly. Here is what we lose:
- Emerging companies and start-ups struggle with visa issues and as a result locate R&D facilities abroad
- U.S. employers have insufficient H-1B visa numbers to employ the best and brightest
- We have a green card investment program (EB-5) close to expiration in September 2015, which deters foreign investors from infusing capital into the United States
- We have a clumsy technology platform for issuing visas that resulted, this summer again, in thousands of qualified visa applicants being stranded abroad.
If the notes to the Committee’s meeting are any indication of where we are headed, we should not expect Congress to pass any meaningful immigration-related legislation in the coming year. There is severe mechanical failure on the immigration law reform front.
Expect any congressional progress toward immigration reform to be canceled or at least delayed for some time. Don’t bank on any meaningful changes to the law in the coming year.