~ Yogi Berra
The talk of the nation – at least that segment interested in U.S. green card benefits available to foreign investors – is about the welcome or feared changes likely to occur in the EB-5 employment-creation immigration investor visa program. Scuttlebutt and divination have yielded a wide range of ever more restrictive, complex and burdensome changes that are foreseeable for this year.
This article will add to this mix a few of the author’s soothsayings, derived from attendance at conferences, discussions with knowledgeable insiders, and a review of the plethora of differing bills and drafts emanating from both houses of Congress (or their respective staffers). Reader beware, however; some, none, but not likely all, of the predictions below may happen. Nonetheless, preparedness for the unknown future is probably better than obliviously passing time, doing nothing and learning that the light at the end of the tunnel is an oncoming train.
Continuation of the Regional Center program. Despite the oft-stated gripe that the EB-5 program allows foreign citizens to buy a U.S. passport, and subject to the connivery of malefactors, Congress will enact and President Trump will sign an appropriation bill or continuing resolution to extend the Regional Center program beyond its current sunset date (April 28, 2017). Sometime thereafter, broad reforms of the EB-5 program (predicted below) are likely to become law.
No future for USCIS’s draft rules. USCIS’s January, 2017 proposals for new regulations, which among others would have significantly increased the minimum amount of investment, will never be promulgated in final form without substantial revisions.
Extended longevity for the Regional Center program. Rather than the fits-and-starts renewals of the past few years, Regional Center investments will be given at least a five-year lease on life.
Cough up more dough. EB-5 investors will no longer qualify with at least a $500,000 investment. Expect that investments minimums will increase to at least $800,000 or a $1.2 million.
Enhanced transparency and more timely reports of material changes. Expect Congress to insist that Regional Centers, New Commercial Enterprises, Job Creating Entities, related parties, and EB-5 investors must disclose far more detailed data and documents than heretofore required. How USCIS will manage the filings and place them online (as Congress will likely require) remain to be seen.
Submission and approval of exemplar business plans before I-526 petitions can be filed. As a practical matter, it makes sense to require that project-related documents and Regional Center designation or amendment requests be given a deferential green light before USCIS adjudicates individual investor petitions; but this exacerbates the immigrant visa quota backlog.
Due diligence will become more than merely de rigueur. Individual non-investor participants will be required routinely to certify that — after internal and external due diligence reviews – entity-related filings fully comply with state and federal securities laws and all other applicable laws and rules. Anticipate also that regional centers and all other project participants (including their lawyers, agents or individuals in active concert with them) must describe policies and procedures that ensure law compliance.
Audits and site visits will proliferate. Entity stakeholders should expect that their activities and records will face onsite or remote scrutiny for law and program compliance at least once every three years.
No hidden payments. Expect that never again will the previously prevalent practice of burying or hiding fees paid to third parties, including migration agents, be countenanced.
Well capitalized players only. Congress will assuredly gouge out ever-higher filing fees, including mandatory deposits into an enforcement-oriented integrity fund and more exorbitant petition filing fees). It will also provide for substantial monetary fines for EB-5 program violations and other legal transgressions – which may be paid only from non-EB-5 money. The heyday of thinly capitalized Regional Centers is over.
No foreign governments or nationals allowed. Foreign governments, sovereign funds or state-owned enterprises will be allowed, directly or indirectly, to provide capital or be involved with a Regional Center, a New Commercial Enterprise, or a Job Creating Entity. Only U.S. citizens or lawful permanent residents will be permitted to own these entities.
The U.S. securities laws will apply extraterritorially. Congress will at last put to rest the feeble claims that EB-5 investments are not securities or that securities jurisdiction ends at the U.S. border. It will also extend the SEC’s lasso to foreign migration agents and promoters.
With expensive provisos, good-faith but swindled investors can keep their priority dates. Priority-date preservation must occur within a short window of time but only if cheated investors ante up another capital contribution of at least the minimum required investment. Money will talk but those with no more investment money will walk (or otherwise leave the U.S.), notwithstanding that hoodwinked investors put up their life savings to immigration under the EB-5 visa category.
Set-aside TEA preferences will be established. Minimum investment amounts and more generous visa-number allotments (with rollover of unused visas) will go to EB-5 investors contributing capital to projects in rural or high-poverty urban areas, or to infrastructure or manufacturing projects. (The name of this movie is The Return of the Pork-Barrel Earmarks.)
Fund administrators will proliferate. Ronald Reagan’s “trust but verify” methodology will come to the EB-5 program. Private plan and yacht builders beware: Money will not move unless independent administrators certify that EB-5 funds will go solely to their lawfully required destinations. Fund administrators will also be required and authorized to review all deal docs of the NCEs and JCEs and to provide timely reports to USCIS, the SEC, and EB-5 investors of any untoward or otherwise materially different activities than outlined in signed documents or governmental filings.
New regulations, studies and reports will regularly be published. Inspectors-general and GAO reports on every nook, cranny and aspect of the EB-5 program will be publicly released. In addition, the Commerce Department will issue regulations outlining job creation methodologies and USCIS alone will determine eligibility for TEA classification.
Some good news. Minors will receive limited age-out protection; concurrent submission of I-526 petitions and I-485 adjustment of status applications will be allowed as now occurs in other employment-based immigrant visa categories; USCIS must reduce processing times; and investors who have waited two years after filing I-526 petitions that are ultimately approved, and who then are either admitted as immigrants or adjusted to lawful permanent resident status will go straight to green card status without conditions.
* * *
As scriptures report, prophets often bring unwelcome news. As the last election proved, prognosticators – no matter that their conjectures may be based on metrics or gut instincts – can be wrong. Whether or not these predictions manifest someday, please be nice to me. Keep in mind the words of Yusuf Islam (Steven Demetre Georgiou, but commonly known by the stage name Cat Stevens), in his unforgettable song, quoted here, clearly out of context:
I was once like you are now, and I know that it’s not easy
To be calm when you’ve found something going on
But take your time, think a lot
Why, think of everything you’ve got
For you will still be here tomorrow
But your dreams may not . . .
Look at me, I am old, but I’m happy