EB-5 Regional Center Program Expires
FAIR Take | July 2021
While the focus remains on the border crisis – and for good reason – don’t forget about deeply flawed legal immigration programs FAIR has long opposed.
The EB-5 Regional Center Program, a way for wealthy investors to obtain green cards, expired on Wednesday. Why? Because it was decoupled from automatic renewals in the Congressional budget process following years of being renewed in that way.
Meanwhile, as a result of a recent court ruling, the minimum regional center investment requirement has returned to $500,000 from a high of $900,000. A U.S. District Court held that the FAIR-supported regulation raising the amount was improperly adopted in 2019. The basis of the decision was that the official who implemented the regulation raising the minimum investment requirement was improperly appointed and therefore the regulation was unauthorized. Judges routinely used justifications such as this to overturn popular Trump-era regulatory changes. However, unlike other immigration regulations promulgated by the Trump administration, this is one Secretary of Homeland Security Alejandro Mayorkas supports – so expect him to use all the tools at his disposal to fight the decision.
Long before these developments occurred, Senator Chuck Grassley (R-IA) and his Democratic colleague Patrick Leahy (D-VT) introduced the EB-5 Reform and Integrity Act to reauthorize the program in exchange for reforms that would reduce corrupt practices and make sure it operates as intended. The EB-5 program was designed to encourage job creation and investment in rural and economically distressed areas of the United States. However, the program has long been riddled with fraud and national security vulnerabilities. It’s also been exploited by some wealthy urban developers who siphon investment money away from rural and economically distressed areas to fund ritzy projects in some of the nation’s wealthiest neighborhoods.
Behind the scenes, there has been a tussle between these wealthy urban developers, and the pro-rural supporters like Grassley and Leahy. This reached a boiling point last week. Senator Grassley attempted to hotline the reform bill through the Senate—allowing for the bill to quickly pass – but Senator Lindsey Graham (R-SC) blocked it.
Considering that the program finally expired, U.S. Citizenship and Immigration Services (USCIS) cannot issue green cards or even approve pending applications. If the program is somehow reauthorized as part of a must-pass bill, then USCIS will quickly resume processing applications and presumably everyone’s application will fall back into line where it was before the program expired.
Lastly, this is the first time an immigration program has expired since Section 245(i) – a law that was originally passed by Congress in 1994. It provided that some noncitizens in country who would not normally qualify for adjustment of status – for example, because they came to the United States without inspection, worked without authorization, or overstayed a visa – could apply if they paid a “penalty” fee and met certain requirements. This allowed families to stay together in the United States to complete the immigration process and avoid separation required to go through it outside the country. Although the law was extended a few times, the final “sunset” or end-date was April 30, 2001.