February 18, 2019

February 18, 2019

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Immigration Debate Begins: Prospects for EB-5 Reform & Reauthorization

Congress nearly averted a shutdown last week, but just missed the mark when Sen. Rand Paul (R-KY) temporarily blocked Senate passage of the fifth – and supposedly final — continuing resolution (CR) of this fiscal year temporarily extending current-level funding for federal activities until March 23, and lifting for Fiscal Year 2018 and Fiscal Year 2019 the spending caps established in the Budget Control Act of 2011. Senator Paul gave a barnstormer of a speech criticizing the increased spending levels and their impact on the deficit. Ending what was perhaps one of – if not the – shortest government shutdowns in history, the Senate approved the CR in the early hours of February 9, followed several hours later by the House of Representatives. With passage of the new two year budget (with increased spending levels for both defense and non-defense) and another short-term CR, congressional appropriators will spend the next several weeks leading up to the March 23 deadline drafting a Fiscal Year 2018 spending bill that reflects the new increased budget numbers.

What does this mean for the EB-5 program?

For now, the EB-5 program will operate under a temporary extension running through March 23. Beyond that, there are a couple scenarios for passage of a bill to reform and reauthorize the EB-5 program. One option is the Fiscal Year 2018 appropriations bill, funding the federal government through September 30th, that will need to be passed by March 23. Another option would be to include EB-5 reform and reauthorization in an immigration measure. After securing passage of the CR overnight Senate Majority Leader Mitch McConnell (R-KY) initiated a process for consideration of H.R. 2579, the legislative vehicle for the immigration debate that will be taken up next week in the Senate. This debate is expected to focus on the Deferred Action for Childhood Arrivals (DACA) program, border security (the proposed wall), family based immigration, and the diversity visa lottery program. EB-5 is not expected to be included in this phase one immigration package, and it is unclear whether or how the House will respond to the measure. However, stakeholders engaged in EB-5 reauthorization should remain engaged because the situation remains fluid.   Should EB-5 reauthorization not be included the emerging package for next week, key policy staff on the congressional committees have indicated that a second, broader immigration package would be considered that would capture the remaining immigration issues such as EB-5.

EB-5 stakeholders will be mounting a vigorous advocacy effort over the coming weeks to ensure that when EB-5 reauthorization is taken up it reflects industry policy priorities ensuring program integrity and fraud abuse measures, adequate and appropriate investment thresholds, sufficient visa set asides, and preventing gerrymandering of EB-5 targeted employment areas.

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About this Author

R. Neal Martin, Government Relations, Mintz Levin, Law firm
Senior Manager of Government Relations

With more than 10 years experience in government and government relations, Neal focuses on issues related to transportation and infrastructure, clean energy, trade, and federal appropriations. Working with a client portfolio made up of non-profits, clean energy start-ups, and large companies, Neal’s efforts have focused on increasing client visibility and influence with decision makers at the congressional and federal agency level, and providing strategic advice on public policy and federal funding opportunities. 

Alexander Hecht, Vice President of Government Relations, Mintz Levin law Firm
Vice President of Government Relations

Alex is Deputy Director of the Mintz Levin Center for Health Law & Policy. He is an attorney with more than 10 years of senior-level experience in Congress and trade associations.

Alex assists clients with their legislative and regulatory needs on a wide range of issues. Prior to joining ML Strategies, Alex served for over six years as chief counsel for Senator Olympia J. Snowe (R-ME) on the US Senate Committee on Small Business & Entrepreneurship. He was the lead policy counsel for Senator Snowe on health insurance market reform, individual and employer-based insurance, ERISA, COBRA, HIPAA, and health care tax incentives. He worked on numerous bills, including the Patient Protection and Affordable Care Act of 2009, Health Care and Education Reconciliation Act of 2010, Small Business Health Fairness Act, and Small Business Health Options Program (SHOP) Act. He advocated for health care legislative and regulatory issues before Senate Finance, HELP, Commerce, and Homeland Security Committees, as well as the US Department of Health and Human Services and Department of Labor. Along with health care policy, he advised Senator Snowe on energy, financial services,  innovation, and technology matters.

Alex is also an adjunct assistant professor of Health Policy at the George Washington University School of Public Health & Health Services, and teaches courses on Basics of Legislation and Regulation and the Data Quality Act and Public Health.

Alex is regarded as one of the leading congressional staff specialists on the regulatory process and how federal agencies promulgate rules and regulations. He has developed numerous bills and amendments reducing the regulatory compliance burden of business.

Douglas Hauer, Corporate Immigration Attorney, Government Investigations, Mintz Levin Law

Doug is a Member in the firm's Corporate & Securities Practice and Immigration Practice. 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...