Call for Long Term EB-5 Reauthorization


Looking ahead to what 2018 may hold, I hope the prospect deferred of long-term EB-5 reauthorization materializes at last.

The past few years have been difficult for the industry and investor families. Legislators, industry groups, investors and advisors have endured a roller coaster ride with mounting expectations of change followed by drops to the status quo. We can all use the ride coming to rest.

Immigrant investor families and U.S. enterprises investing in the EB-5 program need a measure of certainty. U.S. projects that have used or are considering using EB-5 capital need to believe EB-5 still works. The immigrant families who have already invested can’t back out. Their investment is already creating U.S. jobs, and they deserve to know that the EB-5 program won’t evaporate in some weeks or months. Prospective investors are faced with the Hobson’s choice of investing in the Program today with all its present uncertainties, or waiting until tomorrow and being possibly shut out altogether due to significantly higher investment requirements.

Let’s be clear. EB-5 Program 2.0 will not be perfect, just as 1.0 isn’t. The new legislation will have many unanswered questions, and some of those questions will be answered unfavorably to all or some in the final legislation. The big step forward will be the inclusion of measures intended to weed out bad actors and attract the good. But this, too, will be a mixed bag as these measures’ workability and efficacy are unproven and much will be left to USCIS discretion. And no advance endorsement can be offered without seeing the actual text of the next legislative draft. But assuming no curveballs, an imperfect 6-year program is better than continued short-term extensions, because serial uncertainties have put EB-5 on life support.

The EB-5 program is in its adolescence. Let’s recognize also that with its potential for inexpensive capital now proven, we’ll see strong disagreements about how the Program should mature. These disagreements can’t stand in the way of long-term reauthorization, as they will always be with us. As a tiny sliver of immigration as it is, there is lots of room for diverse winners. To build a foundation for even bigger wins and more winners, we need a Program with some lifespan. So let’s all pull for a long-term reauthorization of EB-5, a job creating engine running at no cost to taxpayers. It is time.

About The Author

Carolyn S. Lee is the Managing Partner of Miller Mayer’s EB-5 practice group. She is Chair of the American Immigration Lawyers Association (AILA)’s national EB-5 Committee and has previously served as Vice-Chair and Chair. Carolyn's current advocacy focuses on long-term reauthorization of the EB-5 regional center program and workable reform. Carolyn represents Regional Centers, developers, funds, and investors. She has written numerous in-depth publications on "material change," the "at risk" requirement, and TEAs. Carolyn lectures widely on EB-5 issues and is recipient of numerous awards for excellence including the 2016 Outstanding 50 Asian Americans in Business, the 2015 AILA Presidential Commendation, and the 2008 AILA Joseph Minsky Award. She is listed on International Who’s Who of Corporate Immigration Lawyers and The Best Lawyers in America in Immigration Law.

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