Questions we're asking about EB-5 right now

EB-5 Legislative Update: Mid-September

This post addresses 3 ideas that are currently being discussed in the EB-5 world:

  • Will President Trump do something to “save” the EB-5 program?
  • Will the new EB-5 regulations be repealed by Congress?
  • Will Congress finally enact new EB-5 legislation?

These are all good questions to consider, but the simple answer to all of them is: No. Let’s take a look at each question in a little more detail:

1. Will President Trump do something to “save” the EB-5 program?

Many people look at Trump’s interests and track record with real estate development and believe that he understands and supports real estate deals across the U.S. Trump is not in a position to “save” the EB-5 program as President. Not even his use of executive orders can change the Administrative Procedure Act (APA). The APA is the government’s rules on how to change its own rules. The APA is a set process that takes time in order for any change to be made.

2. Will the new EB-5 regulations be repealed by Congress?

Senator Rand Paul from Kentucky has been trying to get Congress to use the Congressional Review Act (CRA) to overturn or stop the new EB-5 regulations. While there have been many attempts to use the CRA since 1996, there have only been 3 times when the CRA was successfully used to overturn new government regulations. 3 CRA overturns in 23 years is not a very high percentage of overturns.

3. Will Congress finally enact new EB-5 legislation?

While the EB-5 industry continues its efforts to lobby Congress for new EB-5 legislation, there is no real result in sight yet from these efforts. Everyone can see how divided the U.S. Congress is, especially when it comes to immigration issues, including EB-5. With no consensus in Congress, there can be no legislative changes for the EB-5 program either.

The conclusion from all of this is:

  • Be prepared for a Continuing Resolution (CR) to most likely be passed by Congress which allows the EB-5 Regional Center Program to continue unchanged from September 30, 2019 to November 21, 2019; and
  • Be prepared for Congress to pass another CR in order for the EB-5 Regional Center program to continue after November 21, 2019.
    • Note: Direct EB-5 investments and petitions can continue without needing any CR from Congress. Direct EB-5 investments will have to follow the new EB-5 regulations after November 21, 2019 though.
  • Be prepared for the new EB-5 regulations which will come into effect on November 21, 2019.

Contact us with your questions and to speak with one of our immigration attorneys to discuss the best immigration pathway for you and your family.

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