November 19, 2019

November 18, 2019

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Comprehensive EB-5 Modernization Legislation Introduced in the U.S. Senate

Senators Graham (R-SC), Rounds (R-SD), and Cornyn (R-TX) introduced the “Immigrant Investor Program Relief Act” (S. 2778, the Act) on November 5, 2019, proposing long-overdue improvements to modernize the EB-5 program in alignment with industry and market principles. The Act reflects a fair compromise between rural and urban stakeholders, providing substantial market advantages to rural and urban distressed areas while providing opportunities for “downtown” projects.

Major programmatic provisions under the Act:

Duration of Reauthorization – The program’s authorization is extended for six years through Sept. 30, 2025.

Targeted Employment Area (TEA) Definitions

Rural Area definition: The term “‘rural area” means any area that:

  • is outside the boundary of any city or town with a population of 20,000 or more people; and

  • is outside a metropolitan statistical area; or

  • is within any census tract that is greater than 100 square miles in area and has a population density of fewer than 100 people per square mile.

Urban Distressed Area Definition: TEAs are limited to a single-census tract designated by the U.S. Treasury Department as a “Qualified Opportunity Zone,” as per the Tax Cuts and Jobs Act.

Investment Amounts

  • Establishes and maintains a $100,000 differential between the two investment levels.

  • New minimum investment level for TEAs is $1,000,000.

  • New non-TEA amount is $1,100,000.

  • These levels are indexed to inflation going forward.

TEA Set-Asides

  • 15% of visas for Rural.

  • 15% of visas for Urban Distressed.

  • Unused visas roll over annually at the end of each year to general visa pool for access by all projects in the immediately following year.

  • The set-asides apply immediately to new I-526 petitions filed after enactment, but they cannot be applied retroactively towards petitions that were pending as of the date of enactment.

Transition Rules to New Program Requirements – 90 days after date of enactment the new law takes effect. Individual I-526 petitions that were pending up to the date of enactment are grandfathered and not subject to new investment amounts. Pending petitions rejected after enactment and re-filed would be subject to new investment amounts.

Backlog Relief and Suggested Additional Revenue Source – Advance Parole and work authorization.

  • All pending applicants in queue (approximately 30,000) should have the option to pay a fee to enable the individual and derivatives to travel to the U.S. and obtain work authorization if they have an approved I-526 and have been waiting for three years.

  • The revenues raised by the EB-5 program improvement fee/backlog fee should be maintained separately for use by Congress for programs deemed in the national interest.

  • All new Investor Petitions would be required to pay an additional $50,000 that would go into the new fund.

Sovereign Wealth Funds (SWF) – No bar on SWF capital in projects also funded by EB-5 capital.

Premium processing for Filed Cases 120 days – Available for both Investor and Project – $50,000.

Significant New Revenue Sources for Congress and the Agency – $50,000 program improvement fee, premium processing.

Integrity Measures to Bolster National Security and Fraud Deterrence

  • DHS provided with the authority to conduct criminal background checks and obtain biometric information from individuals involved in the regional center program.

  • Establish new authority for DHS to debar individuals, and suspend or terminate regional centers, based on program non-compliance.

  • Clarify the authority of DHS to deny or revoke immigrant investor petitions for reasons including fraud, misrepresentation, or national security concerns.

  • Establish an EB-5 Integrity Fund to provide rigorous program oversight, which would be funded by regional center program participants.

  • Create thorough annual reporting and accounting requirements for regional center operators.

  • Enforce strict new requirements for third-party promoters marketing or promoting regional center investment projects.

  • Provide DHS with improved investigative tools to ensure that an investor’s funds are derived from legitimate and lawful sources.

  • Provisions to ensure that USCIS engages in a proper and non-preferential way with any person or entity involved in the EB-5 program.

  • CFIUS Reform compliance for covered transactions as per the Foreign Investment Risk Review Modernization Act (FIRRMA).

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About this Author

Robert Maples, Greenberg Traurig Law Firm, Northern Virginia, Washington DC, Government Policy
Director

Robert Y. Maples is experienced in the Washington, D.C. federal, state and public affairs arenas. He has also been an advocate for building pragmatic alliances to resolve major social issues and has pioneered strategies for addressing complex public affairs crises in collaborative versus confrontational contexts. He continues his advocacy of pragmatic alliances in furtherance of client/government collaborations among the Congress and federal agencies, and serves as state counsel on complex client public policy matters. He is experienced in complex problem solving in...

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