This Week – And Month – Will Be Critical For The EB-5 Program

Funding for the federal government runs out at midnight on Saturday, Dec. 9. We have been here before: the EB-5 Regional Center Program’s ongoing authorization is dependent upon an extension through a Continuing Resolution (CR). On Saturday, the House Committee on Appropriations announced the introduction of a CR providing a clean extension of the program through December. Thus, everyone can expect a short-term extension and another few weeks of anxiety that will hopefully be resolved before Christmas, and then another extension for weeks or months thereafter. Lather, rinse, repeat, right?

Not exactly, as the politics surrounding the CR have changed dramatically since the last go-round, with the potential that a different immigration program derails the CR and forces a government shutdown and thus a lapse of the Regional Center program given its inclusion in the CR.

Indeed, passage of the CR is in serious question over the issue of securing protection for individuals affected by President Trump’s cancellation of the Deferred Action for Childhood Arrivals (DACA) program, which we covered thoroughly in September. Despite Republican control of both legislative bodies and the White House, passing an extension is far from certain. While Republicans are now upbeat following passage of controversial tax reform legislation last week, passing the much less controversial CR may prove to be more difficult. Sixty votes are needed in the Senate. Several prominent Democrats, including Senators Bernie Sanders and Kamala Harris, have publicly stated that they will not support a CR without protections for DACA beneficiaries. Even in the House, passage will be a challenge without securing Democratic votes as a significant number of Republicans routinely oppose CRs when brought to a vote. Accordingly, both Senate Majority Leader Mitch McConnell and Speaker of the House Paul Ryan will need help from their counterparts to whip support for the CR.

President Trump remains a bit of a wildcard on the issue as well. In May he called for a shutdown on Twitter, and stories broke last week that he believes that a shutdown will help him politically. While it is hard to imagine that a CR would pass Congress and then be vetoed, McConnell and Ryan are probably unable to secure help from the White House in whipping votes. Complicating these matters further is that even if the CR passes, we will find ourselves in a similar position in just two weeks.

Without passage of a CR, the EB-5 program will lapse, injecting great uncertainty for stakeholders given how the government will treat pending petitions.



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