Notwithstanding the Near Collapse of a Multi-Billion Dollar per Year Industry

by Joseph P. Whalen


Hi there folks, it has been a while since I’ve made any public comments on EB-5 but I could not resist this golden opportunity. Well, If you don’t remember me that is because I’m retired now and am only just getting caught up with what has been happening and not happening in the EB-5 Industry of late.  As I started to write it was only just a few minutes after I finished reading the text of the newest legislation.  I am, of course, referring to the EB-5 Reform and Integrity Act of 2022, 8 U.S.C. 1153(b)(5)(A)-(S) which I found easiest to read at my favorite legal website. I particularly enjoyed the irony at the end. Bear with me a moment by reading what I copied and pasted.  I’ll then explain what irony I found so amusing.

This text contains those laws in effect on July 9, 2022[1] (Saturday)

8 USC 1153: Allocation of immigrant visas

********

  (b) Preference allocation for employment-based immigrants

********

(5) Employment creation

********

(E) Regional center program

********

(S) Protection from expired legislation

Notwithstanding the expiration of legislation authorizing the regional center program under subparagraph (E), the Secretary of Homeland Security-

(i) shall continue processing petitions under sections 1154(a)(1)(H) and 1186b of this title based on an investment in a new commercial enterprise associated with a regional center that were filed on or before September 30, 2026;

(ii) may not deny a petition described in clause (i) based on the expiration of such legislation; and

(iii) may not suspend or terminate the allocation of visas to the beneficiaries of approved petitions described in clause (i).

The irony was not lost on me but it might be lost to you. I read that language in subparagraph (S) as a clear expression of the Congressional Intent of the present Congress to “not screw” all those who complied with the law as it existed at the time they went through the adjudication process and are faced with a drastic and abrupt change in the law.  In the scenario embedded in subparagraph (S), it was likely envisioned NOT as the true “sunset” of a 20+ year Program but more likely as a mere “temporary lapse” in the Program. Given the history of the EB-5 Regional Center Program created in the Appropriations Act of 1993, with its numerous lapses and extensions, more thought on a transition is fully warranted and justifiable.  In that the current Congress included prospective ameliorative language in the law, how could USCIS read it as deauthorizing all who had come before its passage? It makes no sense!

What the hell was going on at USCIS and especially IPO when they decided to deauthorize ALL pre-existing Regional Centers? Did they do it in order to get a Court Ordered Preliminary Injunction? Was someone banking on getting a transitional procedure through a settlement agreement? Or was there an immigrant-hating Trump-era holdover calling the shots?  I can’t help but wonder how it happened but also, I’m not all that shocked or surprised that it did. Considering how many forces from the “Culture of NO” might have risen up the ranks courtesy of attrition, it could have been somebody’s last expression of how they really feel about immigrants or maybe just the Regional Center Program. Courtesy of a leveled-headed judge there is a court order in place to stop the madness.

This seemingly abrupt change to an immigration program is NOT unprecedented.  INS and USCIS have weathered drastic changes in various programs over the decades.  Transitional regulations or procedures are NOT unheard of and I think the present situation is a prime example of when to make use of them. Until the final version of that small portion, i.e. the EB-5 Reform and Integrity Act of the much larger piece of  legislation, the Appropriations Act of 2022, was passed and signed, it began with language affirmatively repealing sec. 610 of the Appropriations Act of 1993. However, that language is absent from the final version of the current Appropriations Act that passed in March 2022.  Because it is their sole function in our government, I rely on the Office of Law Revision Counsel to get it right.  There are too many non-final versions from both the House and Senate floating around town to confuse you.  That is why it is best to go with the definitive source.

That’s my two-cents, for now…

[1] This link is to the United States Code as posted on the Office of  Law Revision Counsel (OLRC) website: https://uscode.house.gov/view.xhtml?hl=false&edition=prelim&req=granuleid%3AUSC-prelim-title8-section1153&f=treesort&num=0&saved=%7CKHRpdGxlOjggc2VjdGlvbjoxMTU0IGVkaXRpb246cHJlbGltKSBPUiAoZ3JhbnVsZWlkOlVTQy1wcmVsaW0tdGl0bGU4LXNlY3Rpb24xMTU0KQ%3D%3D%7CdHJlZXNvcnQ%3D%7C%7C0%7Cfalse%7Cprelim


About The Author


Joseph P. Whalen is an independent EB-5 consultant, advocate, trainer and advisor.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.