The Consolidated Appropriations Act, 2021 was signed by the president on Dec. 27. Besides the new expiry date, what is notable for EB-5 is that the Act did not include any country cap change or the EB-5 Reform and Integrity Act of 2020. EB-5 expert Suzanne Lazicki states, “We now have a few months to do what we’ve been trying to do since 2015: get long-term regional center program authorization and reforms that help protect and don’t kill the program.”
What’s not in the Omnibus
2020 saw seemingly increasing momentum for the Fairness for High-Skilled Immigrants Act, legislation that would eliminate country caps — and thus substantially increase the wait times for EB-5 petitioners from every country but China. While this Act was not focused on EB-5, the unintended consequences on the immigrant-investor program would not be seen as positive by most investors and stakeholders. We now, as an industry, Lazicki says, “Have more time to educate Congress and the industry on unintended EB-5 consequences, and how they might be mitigated.” Let’s breathe a sigh of collective relief, but then get to work on achieving this objective. Another bill with significant ramifications for EB-5, the EB-5 Reform and Integrity Act of 2020, also was not included in the Omnibus. This bill has far more support in the industry, with IIUSA, the national not-for-profit EB-5 association declaring, “it’s the most industry-friendly of all the integrity measures in prior bills.” This bill would provide both investors and stakeholders with added protections and help defuse critics of the program. IIUSA believes that such a reform bill is the necessary first step to getting more visas for EB-5.
Standalone EB-5 legislation is now needed
The Consolidated Appropriations Act, 2021 presents a notable change for EB-5: a new sunset date at the end of June. The industry has for the past half decade been living off of short-term reauthorizations that were always linked to government funding. This has meant fiscal-year-end expiries of September 30, not the beginning of summer, as is now the case. EB-5 business-plan writer Suzanne Lazicki points out that this separation of EB-5 from government funding means that continued authorization of EB-5 will require standalone EB-5 legislation. Thus, as an industry, we are now challenged by a deadline only six months away to get the long-term reauthorization the industry has been lobbying for. And reauthorization may occur in the context of legislation that has the changes EB-5 needs to not only exist but thrive into the future. Lazicki reminds us of the significant task that such legislation needs: “Good legislation depends on changes to the popular perception of EB-5, and a better understanding by Congress of who’s using the program and how.”
What new legislation should do for EB-5
Just what should such “good legislation” provide for the EB-5 industry? Stability, Lazicki declares, is the key word. First, it’s needed for the EB-5 investment projects that require reliable costs, timelines, and regulations. Second, Investors, each spending about one million USD to invigorate the U.S. economy — as well as create 10 full-time U.S. jobs — need stability to make such significant investments and life-altering plans. “The program requires better,” says Lazicki. “I look forward to changes in USCIS, Congressional, and industry leadership in 2021 and a path to more stable footing for the EB-5 program.” Hear, hear. Let’s raise a toast to the new year, and what positive EB-5 changes may come our way. Read Lazicki’s blog “Stabilizing the EB-5 Program”