Comment: EB5 Legislative Update -Mid September

Will Trump do something?

· The EB5 industry is rife with rumors that the Trump administration will ride to the rescue by stopping the new regulation going into effect on November 21st. The arguments offered in support of this hope are: (i) Mr. Trump understands real estate; (ii) NYC developers have Mr. Trump’s ear; (iii) the Trump administration has aggressively used executive orders.

· Under the Administrative Procedure Act, a Final Rule’s effective date can be stopped or postponed by amending the Final Rule using the APA’s regular amendment process. However, such an amendment would be (a) time-consuming, (b) unlikely to aid the USCIS’s EB5 mission, (c) would open other aspects of the new regulation to court challenge, and (d) is contrary to White House directives to USCIS to accelerate regulatory change. Due to the aforementioned reasons, an APA action on the effective date is quite unlikely.

· An executive order from the White House to postpone the effective date of the EB5 regulation would run afoul of the APA. In other words, President Trump will not do something on the new EB5 rule because he cannot do anything under the law to stop the rule at this stage.

· Conclusion: the new regulation will go into effect on November 21 st; we urge everyone in the EB5 industry to prepare accordingly.

Repealing the regulation

· Sen. Paul (R-KY) is urging the use of the Congressional Review Act to annul the new EB5 rule. Consequently, many in the EB5 industry are hopeful that Congress can stop the rule from going into effect on November 21 st.

· Since the enactment of the CRA in 1996, many attempts to use the CRA have been made by Congress, with only 3 successes: (a) the most notable success was by the previous Republican Congress to overturn 14 Obama-era regulations and (b) two other CRA actions by Congress in the last 23 years. During these 23 years, the percentage of regulations overturned by Congress has been less than 0.02%. Sen. Paul’s CRA attempt here is of a piece with his reputation for Quixotic missions, he has a long record of failure therewith in the Senate.

· Moreover, Immigration Daily has learnt that a discussion took place shortly after the announcement of the new EB5 rule on possible CRA action at the office of an urban-friendly EB5 Senator with considerable influence in the Senate; the conclusion of the discussion was that CRA action was not viable.

· Conclusion: the new regulation will not be overturned by Congress using the CRA, we urge everyone in the industry to prepare for the new regulation going into effect on November 21st.

Congressional rescue

· A significant effort by the EB5 industry is under way for long term legislative relief. Industry consensus is said to have been achieved on principles, if not actual legislative text. However, relief may not materialize for the following reasons.

· The leading argument offered by proponents of legislative relief is that NYC developers have deep pockets, significant profits from EB5, and that “money talks”. Given the serious divisions among Democrats and Republicans on immigration, reflecting the deep divide among the American public on immigration, the money brought to the table by NYC developers is too little. It would take considerably more money to move Congress on immigration, and even then, it would be a long-term, multi-year endeavor. Immigration Daily welcomes such an effort by the EB5 industry – we simply caution that a “quick fix” in this Congress is very unlikely.

· Rural EB5 gets a muscular boost on November 21st. All agreements made by rural interests prior to the publication of the new regulation are likely to be viewed in a new light once serious give and take on actual text commences in Congress, a probable scenario is a free for all with urban EB5 and rural EB5 interests at loggerheads, with the result being the status quo, i.e. the new regulation remaining the law of the land post November 21st.

· Conclusion: Congressional rescue is improbable, accordingly, we urge the EB5 industry to prepare for the new rule to go into effect on November 21 st.


· There seems to be little factual basis for the hope that USCIS’s new EB5 rule will not go into effect on November 21st.

· Given that a veritable gold rush is currently under way among investors seeking to get in under the deadline, we encourage all projects currently in the market to make the most of this opportunity. ILW is conducting many events in the next few weeks, these may be the last EB5 events we conduct before November 21st, we urge projects to consider participating, please see the information below.

H1B to EB5 Expos in the US & India Expos

September Events Still Available!

In August, we successfully completed 12 H1B to EB5 expos across the U.S. and 16 expos in India as follows:

August Events


Aug 5

Seattle, WA


Aug 6

San Jose, CA

Aug 7

Los Angeles, CA

Aug 8

Phoenix, AZ

Aug 13

Boston, MA


Aug 14

Philadelphia, PA

Aug 15

Washington DC

Aug 16

Atlanta, GA

Aug 21

Detroit, MI


Aug 22

Chicago, IL

Aug 23

Dallas, TX

Aug 24

Houston, TX

Aug 12 & Aug 13



Aug 14 & Aug 16


Aug 17 & Aug 18


Aug 19 & Aug 20


Aug 25 & Aug 26



Aug 27 & Aug 28


Aug 29 & Aug 30


Aug 31 & Sept 1


In September, we will be conducting 12 more H1B to EB5 expos across the U.S. and 16 expos in India as follows:



Sept 3

Seattle, WA


Sept 4

Portland, OR

Sept 5

San Jose, CA

Sept 6

San Diego, CA


Sept 11

Boston, MA


Sept 12

NYC Metro Area

Sept 13

Raleigh, NC

Sept 14

Atlanta, GA


Sept 19

Detroit, MI


Sept 20

Minneapolis, MN

Sept 21

Dallas, TX

Sept 22

Austin, TX


Sept 27

St. Louis, MO


Sept 28

Denvor, CO

Sept 29

San Francisco, CA

Sept 30

Seattle, WA


Sept 6 & 7



Sept 8 & 9


Sept 10 & 11


Sept 12 & 13



Sept 18 & 19



Sept 20 & 21


Sept 22 & 23


Sept 24 & 25



Sept 30 & Oct 1



Oct 3 & 4


Oct 5 & 6


SOct 7 & 8


Discounts are still available, if you ACT NOW.

About H1B to EB5 Expos:

In the last 19 months, ILW has conducted 70+ H1B to EB5 expos in 17 cities across U.S.,
2480+ attendees, 90% are Indian H1Bs.

H1B to EB5 Expos Format:

· Half Day Event for Indian H-1Bs considering EB-5 Option (Speaking Opportunity included). Please bring brochures, PowerPoint presentation, table displays and business cards.

· Special Note for Attorneys: This event will feature two immigration attorney panels solely on immigration law matters. The only way an immigration attorney can participate and speak at this event is if they are nominated by an issuer who is exhibiting at the event (there is no fee charged to immigration attorneys).

About India Expos:

· India is the #1 EB5 Country, larger than the rest of the world combined, including China.

· India is currently the world's fastest growing major economy, it is growing faster than China, the number of new millionaires created each year in India is more than China.

We will quickly put you in front of investors and agents to present your project to. Our expos will flood you with many prospects in a short time.

India Expos Format:

· Expo featuring seminar and exhibition; Mini meetings with investors and agents.

· Please bring brochures, PowerPoint presentation, table displays and business cards.

· Special Note for Attorneys: The only way an immigration attorney can participate and speak at this event is if they are nominated by the issuer exhibiting at the custom expo. (there is no fee charged to immigration attorneys).

Article: Corporate Corner: Immigration Enforcement — Employers Caught Between a Rock and a Hard Place Again By Wolfsdorf Rosenthal

Blogging: Supreme Court upheld Trump's Muslim Ban (Strike One) and Asylum Ban (Strike Two). Will it uphold his Public Charge Ban as Strike Three against racial justice and human rights? By Roger Algase

News: Is Mandatory Detention of Unlawful Entrants Seeking Asylum Constitutional?

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Headline: Explainer: U.S. enacts sweeping new asylum bar following Supreme Court decision Click here
Headline: New immigration policy endangers patients needing life-saving care Click here
Headline: Democrats have to choose between saving children's lives and hurting Trump politically Click here
Headline: It's Not Just Trump: New Report Details How Greed of 'Border-Industrial Complex' Fuels Militarization and Abuse Click here
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Kaufman & Kahn, LLP

Real Estate Practice: Landlord/Tenant and Real Estate Litigation; Cooperative and Condominium Disputes; Collection Actions; Enforcement of Judgments; Arbitration; Residential Real Estate Transactions; Commercial Real Estate Transactions; Business and Commercial Litigation in State and Federal Court; Business Transactions (Contracts, Promissory Notes, Mortgages, Security Agreements, Operating Agreements, Shareholder Agreements, Partnerships, License Agreements); and Commercial Leasing and Lending. Intellectual Property Practice: Copyright Law and Trademark Law: filing and prosecuting applications in the Copyright Register, the USPTO and TTAB; litigating to enforce registrations against infringers (and defending against alleged infringers) in federal courts; defending against Americans with Disability Act (ADA) claims; Intra-Corporate Business Litigation (“Business Divorces”); Drafting and Negotiating Transactions: Licensing Agreements and other Intellectual Property Contracts. Contact:Robert L. Kahn, Esq.; Kaufman & Kahn, LLP - 10 Grand Central, 155 East 44th Street, 19th, Floor, NY, NY 10017, (212) 293-5556,

Help Wanted: Immigration Paralegal

Washington DC - The DC office of Steptoe & Johnson LLP, a Washington, DC based law firm, has an opening for a full-time experienced paralegal to support our busy immigration practice. Minimum of two - five years of immigration paralegal experience preparing non-immigrant (e.g., H-1B, L-1, E-2, O-1) and immigrant (PERM, EB-1 and EB-5) filings. Provide support in preparation and filing of petitions and applications with federal government agencies. Versed in consular processing and practices. Assist with such tasks as: preparing routine correspondence, researching immigration law and procedures, and case management. Play a significant role in gathering information from clients and assisting with immigration strategies. Prepare draft RFE responses, appeals and memoranda. Experience with compliance issues: E-verify and I-9 audits. Knowledge of web-based case management system. Excellent attention to detail and strong organizational and communication (oral and written) skills. Ability to work efficiently in a fast-paced environment with an emphasis on ability to work with a team. Strong skills in working on multiple projects. A four year college degree is required.

Please submit cover letter, resume and writing sample to

Letters of the Week

Immigration Event

Immigration Newsmaker: A Conversation with USCIS Acting Director Ken Cuccinelli 1:00 p.m., Thursday, September 26, 2019 National Press Club 529 14th St. NW, 13th Floor Washington, D.C. 20045 For more info see:

An Important disclaimer! The information provided on this page is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney. Copyright 1995-2017 American Immigration LLC, ILW.COM. Send correspondence and articles to Letters and articles may be edited and may be published and otherwise used in any medium. The views expressed in letters and articles do not necessarily represent the views of ILW.COM.
Publisher: Sam Udani ISSN: 1930-062X
Advisory Board: Jason Dzubow, Rami Fakhoury, Matthew Kolken, Chris Musillo, Lory Rosenberg, Greg Siskind, Joel Stewart, Margaret Wong