Comment: Impact of Election on EB5

We examine here the impact of the 2020 elections, on the executive branch and the legislative branch.

As of this writing at 5pm ET on Friday November 6th, it appears that Mr. Biden will win the Presidential election 306 to 232 -- that is the same margin as Mr. Trump's victory in 2016. So Mr. Biden has at least the same mandate in 2020 that Mr. Trump did in 2016. Also given that Mr. Biden will eventually win by 7 to 8 million votes, his mandate in 2020 will be even greater than Mr. Trump in 2016 given that Mr. Trump lost the popular vote by 3 million votes in 2016. Further, Mr. Biden's 2020 victories in Georgia and Arizona were at least as momentous as Mr. Trump's 2016 victories in Wisconsin, Michigan and Pennsylvania.

The mandate for Mr. Biden is even more clearer on the issue of immigration because that has been the signature issue for Mr. Trump in 2016 as well as 2020. The following immigration actions are likely in the Biden Administration:

  • A slew of executive orders undoing all of Mr. Trump's executive orders on immigration, most likely all of these will issue in the first 100 days itself.
  • A clear message sent to USCIS that it is primarily a benefit agency, not an enforcement agency. USCIS processing times may improve as a result.
  • As Mr. Biden re-engages America with the world, DOS will be encouraged to open more consulates despite covid, and speed up visa processing in particular.
  • SEC enforcement will dramatically increase on unregistered finders fees for EB5 investments, so both issuers and finders who have been operating in the gray area will find themselves on the receiving end of SEC scrutiny and possibly fines.

As of 5pm ET on Friday, the Senate stands at 50 to 48 with two Georgia seats headed for a run-off. Historically, first term Democratic Presidents since 1884 have won control of Congress too. Mr. Biden can repeat this, despite November's results, in the following 3 scenarios:

  • Since Georgia flipped for Mr. Biden, and control of the Senate now hinges on the two Georgia seats, we will likely see significant turnout in Georgia on January 5th and the Democrats have a chance of flipping the Senate seats.
  • If one or both of Georgia seats are won by Republicans, Mr. Biden can appoint one or more of three Republican senators who have indicated their retirement in 2022--Sen. Johnson of Wisconsin, Sen. Toomy of Pennsylvania, Sen. Burr of North Carolina to a cabinet position or an ambassadorship so that their respective Democratic state governors can appoint their Democratic replacement to the Senate.
  • In 2022, there are open seats in Wisconsin, Pennsylvania and a special election in Georgia--all the states which Mr. Biden won. Flipping any 1 of them would give the control of the Senate to Democrats.

With these 3 scenarios, there is a 50-50 chance that Mr. Biden will have a Democratic Senate sometime in his first term.

As to the House, even after the gains of Republicans in State legislatures in 2020, their net ability to control redistricting after the 2020 census is less than what it was after the 2010 census, so Democrats should hold on to the House in 2022 as well.

Implications for EB5

The chairmanship of the Senate Judiciary committee overseeing EB5 moves from Sen. Graham to Sen. Grassley, if Republicans control, because Sen. Graham is facing a term limit on his chairmanship. Sen. Grassley will ensure that no element favoring urban interests vs rural interests will get past the committee--so no change in TEA definitions can be expected.

There is going to be a large push for economic recovery in Congress and EB5 will be a part of that push. A huge increase in EB5 quota with halving of the investment amount is something that is being talked about in Congress. With the massive expansion of quota (such as doubling or quadrupling), separate sandboxes for urban and rural interests that the industry has been pushing for become workable. Should EB5 legislative changes come in 2021, they will be positive for the industry, the industry will not be playing defence.

In summary, this election has the following consequences: On the executive side the changes are definite and positive; on the legislative side, the changes are not definite, but still positive.

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