Comment: Wishful Rumors

There are many rumors flying around that there will be a postponement of the November 21st deadline--postponing the higher investment amounts and the new TEA rules. Many immigration attorneys have contacted us asking whether these rumors have any basis in fact. The rumors range across all three branches of government--judiciary, executive and legislative, we analyze each below.



Judiciary:

We are surprised that no lawsuit has yet been filed seeking a temporary restraining order (TRO) on the new regulation. We expect a lawsuit to be filed between now and November 20th. Attorneys familiar with TROs for Administrative Procedure Act litigation tell us that a likelihood of eventually prevailing is a requirement for the issuance of a TRO by a federal judge. By that standard, it is unlikely that a TRO will be issued, since the USCIS has been unusually compliant in its APA rulemaking for the new EB5 reg, but it is a fool's errand to predict what a federal judge may or may not do in any specific case.



Executive:

No one in the executive branch can delay the regulation absent a true national emergency such as a large earthquake in California or a war. The heads of USCIS or DHS cannot do it, nor can the President lawfully issue such an executive order. It is not reasonable to expect that the executive branch will issue an unlawful order.



Legislative:

Our legislature is sovereign and certainly has the power to postpone the effective date of any regulation. This has been attempted a few times through the procedures established in the Congressional Review Act. No one is talking about using this Act for EB5, and even if it was attempted, there is only an infinitesimal chance for success. The other way is to override the regulation through a new statute, for example the bill that Graham, Cornyn and Rounds have recently introduced. For that to happen the bill would have to be attached to the Continuing Resolution (CR) which will come up for a vote very early next week. There is no bipartisan or bicameral support for such an attachment at this time. The other method of postponement by Congress would be a two line amendment deferring the deadline by 30 days attached to the CR. But this is not how Congress works. Currently, the CR being considered is relatively clean, about 5-9 pages long, albeit some provisions on Veterans and/or ExIm Bank, and/or other issues may lengthen the document in due course. To include the two line amendment to the CR is extraordinarily difficult, because for that to happen the "Big 8" (Both Party leaders in the House and the Senate as well as the heads of Appropriations committees in both Chambers for both Parties) would have to sign off on it. The Big 8 includes Senator Leahy who is strongly opposed to any deferment of the November 21 deadline. Senator Leahy and his staff would have to be sleeping at the wheel for any deferment language to be snuck into the CR, and our inquiries indicate that Senator Leahy and his staff are awake at their posts at this time.



The rumors of postponement of the November 21st deadline appear to be wishful thinking run amok. We urge the EB5 industry to prepare for the regulation to go into effect on November 21st.

Please let us know your thoughts by writing to editor@ilw.com.

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Focus: PERM Illuminated - Hot Off the Presses
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