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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.

Three days into the government shutdown, Senate Majority Leader McConnell (R-KY) and Senate Minority Leader Schumer (D-NY) took to the Senate floor Monday afternoon to announce an agreement to end the impasse and reopen the government. The Senate voted later in the day 81-18 in support of a short-term continuing resolution (CR) running through February 8, sending it to the House of Representatives where it was quickly approved 266-150. The CR was then signed by President Trump, allowing Federal workers to return on Tuesday.

Setting the Stage for Immigration & DACA Negotiations?

Democratic support, while not universal, was secured with a promise from Majority Leader McConnell to open bipartisan talks on various immigration issues, including the proposed border wall and the so-called “Dreamers” impacted by President Trump’s decision to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program. The commitment from Majority Leader McConnell is for any bipartisan immigration proposal to go through the committee hearing process, debate on the Senate floor, and an open amendment process. If the Senate has not voted on an broad-based immigration agreement by February 8, the agreement is that DACA would be brought before the Senate for an up-or-down vote.

EB-5 Reauthorization

As the CR will continue current programs and authorizations, the EB-5 immigrant investor program will also extend through February 8, allowing House and Senate leaders to continue their work to reach agreement on a reform and reauthorization of the program. There are now three plausible scenarios for action on EB-5:

(1) A Broader Immigration Bill?  Reauthorization is included as part of a broad immigration bill. We have been told by senior staff for key congressional negotiators that EB-5 was not part of the bipartisan proposal rejected by President Trump on January 11. However, with the renewed focus on finding a path forward on immigration, it remains a possibility that EB-5 could be included in whatever final agreement is negotiated – although conventional wisdom is that initial immigration bill, which will focus on key issues like DACA and the wall, is not likely to carry EB-5 reauthorization;

(2) Omnibus Appropriations Vehicle?  Reauthorization is included in an omnibus appropriations package. With the February 8 deadline to fund the government, we could see a large spending bill that includes various other policy matters, such as EB-5. While reauthorization of EB-5 has largely been driven by Republicans in this congress, the 60 vote threshold in the Senate means that Democrats will by necessity have a seat at the table for an omnibus bill and will have some say on policy priorities in any reauthorization of the EB-5 program; or

(3) Existing Program Extension?  The EB-5 program is simply extended once again by another CR, which could last for a period of weeks, or months, or stretch through the end of the fiscal year on September 30 should no omnibus bill come together, or the program is not included in a broad immigration package. This is the least likely scenario and is not something that is actively discussed on Capitol Hill – yet – but stakeholders should be mindful that it is a possibility.

Challenges Ahead

The Senate agreement to end the government shutdown certainly adds momentum to the drive toward an immigration bill, however there are potential hurdles that will have to be overcome. During last week’s negotiations with President Trump to avert a government shutdown, Minority Leader Schumer had offered to support funding for the proposed border wall in exchange for action on DACA. In the aftermath of the shutdown the Senator rescinded that offer yesterday. President Trump in response tweeted that without funding for the wall he will not support any effort to resolve DACA. To that, add resistance in the House of Representatives, where conservative Republicans are urging Speaker Ryan (R-WI) to push an immigration bill that would be far to the right of any potential bipartisan agreement in the Senate. From the perspective of Senate Democrats, the hope is that if – and “if” is the operative word – they are able to secure a bipartisan immigration deal in the Senate it will put enough political pressure on House Republicans and President Trump that they have no choice but to support it.

This leaves a number of questions.

If the Senate doesn’t approve an immigration bill or hold a vote on DACA by February 8, will Senate Democrats be willing to force another government shutdown?

 What happens if the Senate approves an immigration bill or DACA solution, but the House declines to do so?

 And, of course, what will President Trump do if he doesn’t get funding for his proposed border wall, but is presented with an immigration or DACA bill for signature?  

Stakeholders Need to Remain Focused

With action on immigration of some sort more likely than not in the Senate by February 8, stakeholders interested in immigration reform and the EB-5 program should remain focused on advocating for their concerns over the coming days and weeks.

With the House and Senate both in session for only six days before February 8 the next two weeks will be intense, and we will be posting more as the debate unfolds.

Partner Douglas Hauer on our sister blog, EB-5 Financing Matters, provides an update on the current EB-5 continuing resolution and proposed reform.

With all eyes in Washington focused on tax reform, let’s not forget that there is a hard deadline approaching to address funding of federal activities with the current continuing resolution (CR) set to expire soon. The CR has been in effect since the start of the current fiscal year on October 1 and runs through December 8. This CR is the current vehicle for extension of the EB-5 Immigrant Investor Program, and is a temporary measure.

For full article, click here

Partner Douglas Hauer on our sister blog, EB-5 Financing Matters, provides an update on EB-5 authorization as part of a pending Continuing Resolution.

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.”

Law 360 published a review of the top immigration cases of 2015, and quoted Mintz Levin Member Douglas Hauer discussing SEC enforcement in EB-5 cases:

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.

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.

Continue Reading Post Paris and San Bernardino Attacks: Visa Policies Under More Scrutiny

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.

Continue Reading E-2 Visas May be Available to Israelis by end of 2015

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.

Continue Reading U.S. Embassy in Tel Aviv Launches Online Videos 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.

Continue Reading Don’t End Up on a USCIS List of Terminated EB-5 Regional Centers: Be Creative and on Time with your I-924A Filing