Comment: EB5 Market Must Resume On May 16

Table of Contents:

1. The law requires the EB5 market to resume on May 16
2. ACWIA as a model of implementation of integrity measures 
3. What can the EB5 industry do?
4. Accountability for USCIS/DHS management 

1. The law requires the EB5 market to resume on May 16 

• As best as we understand it, the EB5 Reform and Integrity Act requires only that a I-924 be submitted - NOT adjudicated - before a I-526 is filed, post-May 16. 
• The EB5 Reform and Integrity Act commands USCIS to restart the RC program in 60 days–that is the mandate of the statute. Not restarting the RC program on May 16 is a violation of the underlying law, the Immigration and Nationality Act itself, of which the EB5 Reform and Integrity Act is merely an amendment. Whether the delay is 2 days, 2 months or 2 years, all delay is equally in violation of the statute, which envisions that job creation through investment must occur. Therefore, whatever USCIS wants to do, needs to be done by May 16–that is why Congress gave 60 days to USCIS. Congress has ordered USCIS to get investments flowing and get jobs created starting May 16. Refusing to do so is a violation of the underlying Immigration and Nationality Act - USCIS does NOT have fiat authority to suspend the EB5 provisions of the INA.

2. ACWIA as a model of implementation of integrity measures

• The EB5 Reform and Integrity Act has amended the INA--it is a minor modification of the INA, the underlying statute has not gone away. The model for how such modification can be, was, and should be handled is ACWIA which brought integrity measures to the H1B program in the late 1990s. The same principles apply here.
• The H1B program was NOT stopped or paused by USDOL (the US Department of Labor). Employers continued to file H1B applications without any interruption. ACWIA required additional attestations from employers, made under penalty of perjury. Audits were used on a case by case basis to investigate suspicious activity and stop it. The H1B program flourished as bad actors were removed without interrupting the business of good actors in the H1B industry.
• Just like ACWIA did for H1B, the EB5 Reform and Integrity Act has the potential of producing a better and stronger EB5 industry--if implemented similarly by USCIS. Congress wants to remove bad actors from the EB5 industry--not kill the EB5 industry. Requiring attestations from RCs, under penalty of perjury, as a pre-requisite to filing I-526s, is an entirely reasonable and efficient way for USCIS to administer the EB5 program going forward (site visits offer USCIS an additional tool to ensure compliance). Halting the EB5 industry would be to kill the goose that lays the golden eggs, contrary to Congressional wishes and explicit direction to USCIS.

3. What can the EB5 industry do?

• Behring has filed a lawsuit challenging USCIS’s interpretation of "Re-designation", a USCIS ploy to bring the EB5 industry to a screeching halt. See the complaint filed by Laura Reiff of Greenberg Traurig, here.
• Neg Reg: Negotiated Rulemaking is a potent tool available to all major stakeholders in the EB5 industry (such as all industry associations, any groups of RCs, and even individual RCs with a large number of investors). All can use it to ensure that USCIS implements the statute pursuant to Congressional mandate. The most comprehensive article on Negotiated Rulemaking in immigration is by Gary Endeleman, in two parts, hereand here:
• What should stakeholders do? In short, everything. 1) Lawsuits 2) Neg Reg 3) Informal and formal feedback to the agency 4) Use media to get the word out 5) Congressional liaison and lobbying 6) Every other idea that will help USCIS understand its mission. The goal should be to insist on an orderly resumption of the EB5 market on May 16. Both carrots and sticks are necessary in dealing with USCIS which has a history of flouting the law.

4. Accountability for USCIS/DHS management

• Generally, executive agencies are very careful to faithfully implement laws that Congress passes. USCIS is an exception because their primary stakeholders, immigrants, can’t withhold their vote if their Congressional representative does not heed pleas from immigrants to bring USCIS to heel. As an unfortunate consequence, USCIS has developed a culture of running afoul of the law.
• Mr. Mayorkas (DHS Secretary) and Ms. Jaddou (USCIS Director) have excellent reputations–they have a stellar record of managing large and complex organizations, and an equally long and honorable record of being pro-immigrant. They will not want to jeopardize their reputations by violating the statute they have sworn to implement. If USCIS decides to break the law, and shuts down the EB5 industry on May 16 by stopping acceptance of I-526s, Mr. Mayorkas and Ms. Jaddou will surely be held accountable. The GAO and the CIS Ombudsman are among many agencies that can and will investigate USCIS, in addition to scathing and searching Congressional oversight hearings (EB5 support is bi-partisan). The EB5 industry is formidable in its capacity to be heard by Congress, as can be readily ascertained by the simple fact that the EB5 Reform and Integrity Act is the first immigration benefits bill to be passed by Congress in two decades. Mr. Mayorkas and Ms. Jaddou will be playing with fire should they bring the EB5 program to a stop on May 16th.

Please let us know your thoughts by writing to us at editor@ilw.com

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