Achieving Industry Consensus: Let's start with Grandfathering

by Ishaan Khanna for AIIA

It has now been 12 weeks since the lapse of the EB-5 Regional Center Program. While the industry scrambles towards perhaps the last clear chance of reauthorization, tens of thousands of immigrant investors and their families find themselves in a precarious situation: their investments and their immigration process stalled, staring at an impasse and wondering who is to look out for their interests. Now, more than ever, existing investors need advocacy. The American Immigrant Investor Alliance aims to do just that. 

The American Immigrant Investor Alliance (AIIA) was founded in April 2021 as a Washington D.C.-based 501(c)(4) non-profit to represent a single constituency - existing EB-5 immigrant investors. Today, AIIA is the first by-investors-for-investors organization which seeks to bring a new voice to the discourse. The Alliance recognizes investors as a fundamental pillar of the EB-5 ecosystem. American history has shown that only those ecosystems where all relevant stakeholders are well-represented and heard have sustained themselves over time and thrived. AIIA advocates on behalf of existing investors in the legislative, administrative, and judicial branches, as well as investment spaces. Investors need not feel any longer that they are a missing piece in this EB-5 advocacy puzzle. 

AIIA is focused on two fronts that need urgent attention: (1) investor protection amidst the Regional Center program reauthorization process and (2) managing the perception of the EB-5 program in the eyes of the American public.

The Foreign Investor Fairness Protection Act 

When the EB-5 Regional Center program lapsed on July 1, 2021, thousands of current immigrant investors were left in a state of limbo. USCIS issued guidance that it would not act on any pending regional center EB-5 petition or application that is dependent on the lapsed statutory authority until further notice. The Department of State updated the Visa Bulletin to state that no regional center visas may be issued overseas or final action taken on adjustment of status cases pending legislative action to extend the category. Regional center EB-5 visas have been unavailable since June 30, 2021.

It was not the intent of Congress, when the Regional Center Program legislation was enacted in 1992, to have retroactive impact on future legislative action (or inaction). To instill investor confidence, both present and future, any reauthorization efforts by the industry must have at the very least, grandfathering provisions which allow safe passage through the immigration process to investors who have already filed their petitions. The EB-5 industry recognizes that its investors value, above all else, certainty of the immigration-by-investment framework to which they are committing. Now is the time to demonstrate to the global investment community that America holds up its end of the deal, even if reforms need to be negotiated. Grandfathering is simply a common-sense idea whose urgency is upon us.

To that end, AIIA has worked to draft legislative language that, if enacted, will ensure existing investors are protected. It teamed up with Robert C. Divine, head of immigration practice at Baker Donelson and former Chief Counsel and Acting Director of USCIS, to create the “Foreign Investor Fairness Protection Act (FIFPA)”,. FIFPA will ensure that investors will be grandfathered, for all relevant purposes, and therefore able to continue their immigration process under the eligibility rules in effect as of the time they file their initial immigrant petition. In addition to protecting existing investors, the bill will also serve as a confidence-building measure for future investors, who are more likely to undertake the EB-5 route if they are assured that political wrangling in Congress will not affect their investment and immigration outcomes.  

IIUSA has publicly expressed commitment to FIFPA’s legislative text as part of their reauthorization-related legislative agenda. The EB-5 Investment Coalition, the other major industry group, has expressed support for a grandfathering provision, although it has not publicly supported FIFPA. For its part, AIIA has been busy securing support from Senate and House members in favor of enacting FIFPA, if introduced as a bill. Some members have provided commitments to co-sponsor such legislation.

The content of this bill is non-controversial; and the support is bipartisan, which creates a strong likelihood for its passage in Congress. However, AIIA still needs greater awareness among investors and the EB-5 community to create traction for this legislative proposal. In preparation for all eventualities, AIIA is preparing to take on grandfathering as a standalone provision within an omnibus bill vehicle. AIIA has presented this proposal to and is working with AILA (The American Immigration Lawyers Association) in securing their commitment of support for this bill, which would create a historic moment of alignment between AILA and the immigrant investors.

“Faces-behind-EB5”

Some musings are in order. Has the perception of the EB-5 Regional Center program been managed optimally in the eyes of the American public? Does Congress, at large, fully value the greatness and potential of this program? Has there been an adequate response to counter the constant media assaults on this program?

Bending and contorting the image of the EB-5 program has been a favorite media pastime for years. Facts are often left out. EB-5 has been a vital job-creating tool, especially during economic downturns, providing funding for a wide variety of developments around the country at no cost to the American taxpayer. Entire communities have benefited from jobs and prosperity because of developments made possible by the EB-5 program. Since its inception in 1992, the now-lapsed Regional Center Program has attracted an inflow of more than $41 billion in foreign investment and created more than 820,000 jobs in states across the nation. 

We must acknowledge that industry interests are, by design, not equipped to respond to the assaults on the program. Of course, the media prefers a scandal over a success story. Dubious anti-immigrant voices contort the program’s requirements amidst an agenda focused more on bigotry than the truth.

The challenge is that industry interests lack faces. And the American public relates best with other hardworking faces like themselves. To correct perceptions and restore the EB-5 brand, AIIA has launched the “Faces-behind-EB5'' campaign to connect immigrant investors directly to members of Congress to show the positive impact the program has had on the lives of hard-working immigrants. This campaign by AIIA showcases investors as valuable members of society, actively contributing to their communities, and highlighting that no class of immigrants is immune to the harshness of the U.S. legal immigration system. In the time since its formation, AIIA has held discussions with Senate staffers across both sides of the aisle, and has invited their constituents to partake in those discussions. AIIA believes it is essential to put human faces to the program to highlight the two principals at the core of the regional center program: American job creation and legal immigration. 

Despite making significant progress, there is much work ahead, extending far beyond the next reauthorization. But make no mistake, while grandfathering and perception-building are existential issues, improving the quality of the immigration by investment program requires a long-term view. AIIA is up to the challenge of engaging stakeholders to find ways to resolve and mitigate other programmatic issues – slow processing times; consistent adjudications; improved transparency at USCIS; reasonable redeployment guidance which does not penalize immigrant investors involved in successful job creation.

Let’s restore the EB-5 program and unleash its true economic potential - by focusing on its existing consumers first. Grandfathering is a common-sense idea, and it can be the foundation to building much-needed consensus.


About The Author

Ishaan Khanna is a founder of AIIA. The American Immigrant Investor Alliance (AIIA) is a registered 501 (c) (4) organization dedicated to informing, educating, and advocating on behalf of all EB-5 investors from across the globe. Immigration by Investment matters in the US have numerous stakeholders each focused on their own agendas. Until AIIA's formation, there was no single organization effectively advocating on behalf of EB-5 investors. AIIA was founded in 2021 by four immigrant-investors to provide a voice and representation on behalf of investors. Through active and extensive outreach within the immigration and investment communities, government administrative agencies, Congressional leadership and other stakeholders, AIIA provides investors a seat at the table with respect to decisions and actions that affect them. As an organization whose sole focus is on EB-5 investors, both that are resident in the US and those awaiting their petitions to be adjudicated outside the US, AIIA strives to be the single authoritative investor-focused advocacy organization representing interests of all EB-5 investors.


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