EB-5 – The Path Forward

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The stakeholder community was advised today by Charles Oppenheim of the U.S. Department of State that it was quite possible for wait times to be as long as fourteen (14) years in China, seven (7) years in Vietnam and nearly six (6) years in India. Of course, these times are estimates based on trends that will undoubtedly slow down as a result of announcement. The question that is on all our minds is what is the path forward. Well, there are some positives.

While the industry has had 14 short term extensions, the reality is that because of them, we have a chance to correct the wait time issue through new legislation. Moreover, the reality of wait times should help to coalesce the industry around one central issue – visa relief.

Our path forward is clear. There has been concern in the stakeholder community, specifically, and in the greater community about abuses and bad actors in EB-5. In the past, various legislative drafts have attempted to remedy this by including portions of the different Securities and Exchange Commission Acts in the legislative drafts. This, however, conflates issues. The solution is a rather simple one. The EB-5 legislation moving forward should require an affirmative declaration by the issuer of the offering confirming that the offering is a security subject to all State and Federal securities laws.

The second issue (which is most important to the majority of stakeholders that already follow securities laws) is visa relief. While we would support a greater allocation of visas to the EB-5 category, this seems like a stretch. However, legislation the eliminates derivatives from being counted against the 10,000 annual cap would provide immediate, much needed relief and breath life back into the industry.

The path forward is clear: legislation that provides for a long-term extension of the program and addresses (1) the bad actor concerns by acknowledging that State and Federal securities law apply and (2) visa relief by eliminating derivatives from the annual cap. This is the path forward and we hope that all stakeholders will rally around these two points.


About The Author

Laura Foote Reiff Co-Chairs the Business Immigration & Compliance Practice and is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies, as well as related employment compliance and legislative issues.

Jeff Campion is the CEO of Pathways EB-5 which has a family of ten (10) regional centers that encompass nearly every major U.S. population area in over 31 states. Mr. Campion is an attorney that specializes in representing foreign high net-worth clients and their businesses. His firm continues this representation before the US Citizenship and Immigration Services (USCIS), U.S. Departments of Labor and State, and state employment agencies. His clients include individuals and families that have or currently appear on the Forbes List for the wealthiest individuals in Latin America. He regularly travels to Latin America to speak on complex immigration-related issues, including citizenship and immigration operations. Mr. Campion received his J.D. with Honors from the University of Florida College of Law in 1997. While in law school he also completed the coursework for a Masters in Arts Latin American Studies. He received his B.B.A. in International Finance and Marketing in 1993 from the University of Miami graduating Cum Laude with Departmental Honors and from the Honors Program. Mr. Campion speaks conversational Spanish and Portuguese.