United States: Backlog of Investor Visa Applications in Limbo as Program Dies

Source: bloomberglaw.com

Published: 26 June 2021

The immigrant investor visa program will expire on June 30, despite a last-ditch bipartisan effort led by senators Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.) to extend it, with potentially thousands of petitions still pending at U.S. Citizenship and Immigration Services.

The Homeland Security Department subagency can’t yet say what the fate of those EB-5 applications are, USCIS spokesman Joe Sowers said Friday. The data is current through the second quarter of the government’s fiscal year.

The program—in which people can get green cards in exchange for investing $1 million, or half that amount for economically depressed areas, and creating 10 or more jobs—dates back to the administration of President George H.W. Bush.

Lawmakers failed to reach a deal on its extension before adjourning Thursday until after the Fourth of July holiday. It also follows a spate of mostly unsuccessful lawsuits against government officials seeking to speed up processing of those applications.

Deep fissures between lawmakers on both sides of the aisle cast doubt on the success of future negotiations to reauthorize the program, with some opposing increases to the baseline investment amounts that made the visas more costly, particularly in affluent areas, and others focused on integrity measures meant to stamp out fraud.

“A narrow subset of big-moneyed and corrupt interests has now shown that they would rather kill the program altogether than have to accept integrity reforms designed to clamp down on their bad behavior,” Grassley said during a Senate floor debate Thursday during which he and Leahy argued for its preservation.

Leahy likewise said in a statement that the program is set to lapse, with “untold economic consequences throughout the communities that rely on the program for development projects.” He added he remained “committed to reforming the EB-5 program should there be another opportunity to do so.”

Asked whether the expiration will put pressure on lawmakers to act, Cornell University Law School professor Stephen W. Yale-Loehr noted that time pressure hasn’t been enough to force them to reauthorize the program thus far.

With Congress tied up in negotiations over hundreds of billions and potentially trillions in infrastructure spending, “it’s a competition of priorities,” he added.

Court Fights

The program’s end follows a recent run of federal court rulings rejecting claims that immigration officials have dragged their feet when processing applications for the visas.

Judges in 2020 threw out two of four lawsuits in which they ruled on those allegations. This year, the denial and dismissal rate increased substantially, with courts finding for the government in two of three rulings issued in January and February, and in all four such decisions in March.

While a judge only partly sided with the government in a May ruling, three more requests for orders compelling the DHS unit to hasten its determinations were denied just this month.

In many of these cases, judges cite a set of factors in a 1984 case—Telecommunications Research and Action Center v. FCC—that set standards for when courts ought to compel agencies to take action in the event of an unreasonable delay. The opinions often cited the concern that siding with the plaintiffs would send a signal that litigious applicants for the program can jump to the front of the line.

“This precedent applies even more powerfully here than in the typical case presenting claims of unreasonable delay,” wrote U.S. District Judge Timothy Kelly in Washington wrote in a June 18 opinion.

Government officials, Kelly continued, “not this Court, are best positioned to understand the continued effect of the pandemic on their operations, the entire backlog of visa applications, the competing demands on involved personnel, and even how (if at all) to account for the impending deadline for Congress reauthorize the EB-5 Regional Center Program.”

No ‘Reasonable Timeline’

Proponents of the program said it was unfair for applicants to have had to wait so long.

Combined with the wait times, a 2019 rule imposed by then-President Donald Trump’s administration—raising the minimum amounts to $1.8 million, or $900,000 in more distressed areas, up from $1 million and $500,000, respectively—drove up the risks investors, backers of the program say.

A federal judge threw out that rule late Tuesday.

The program has been operating on a “pilot” basis for decades, and warring EB-5 lobbying groups are at odds over whether to back a bill that would reauthorize it for five years while giving USCIS more authority and putting more guardrails on the program.

Disagreements in the Senate spelled the program’s demise. Grassley and Leahy wanted their five-year reauthorization bill (S. 831), with measures to root out fraud in response to scandals in recent years.

Senate Majority Leader Chuck Schumer (D-N.Y.) co-sponsored a 2019 bill (S. 2778) from several Republicans that would set investment minimums at $1 million for projects in targeted areas and $1.1 million elsewhere, and lobbyists have said they’ve been circulating language from that proposal this year.

Key issues dividing both sides include the minimum investment amounts and definitions of the areas with lower minimums.

Legislation would be a better way forward than litigation, and it’s unfortunate Congress isn’t paying enough attention to investors’ years-long waits for visas after committing large sums of money, said Jane Wu, president of the EB-5 investment and real estate development firm Panorama Holdings and founder of the American Alliance for Economic Development.

The group had been lobbying Congress and parts of the executive branch on the EB-5 program for the past three years, primarily through the firm Alpha Strategies LLC, as well as through former Rep. Kevin Yoder (R-Kan.), and lobbied on the Grassley-Leahy measure in the first quarter of this year, disclosure forms show.

“New investors need to believe they can get their green card within a reasonable timeline,” said Wu. “Without getting these investors comfortable, the program is not going to be attractive anymore.”