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A New Dawn For EB-5 Sunset?

by Carolyn S. Lee

We have a new President who doesn't embarrass us when abroad, Democrats hold majority in both houses of Congress -- the landscape is brightening if you don't look underfoot at the remains of our economy.

So does this mean we can feel optimistic that the EB-5 Pilot Program will be renewed in September without yesteryear's handwringing?

Indeed, there seems to be fresh momentum here. The influential Senator Charles Schumer (D-NY) is now the Chairman of the Senate Immigration Subcommittee. His appointee for the new Staff Director position, Leon Fresco, is familiar with the EB-5 program and supports long term or permanent authorization for the EB-5 program. Wouldn't that be nice? Also, a fresh voice in the House has staked out a position in support. Representative Jared Polis (D-Colo) is interested because there is bubbling Regional Center activity in his district. Taking the cue from the EB-5 bill introduced in the House by Rep. Flake (R-AZ) and in the Senate by Senators Leahy (D-VT) and Specter (R-PA) last year, Rep. Polis intends to introduce his own bill in support of the EB-5 program along the same lines. Go, Congressman Polis, go!

Even USCIS is getting in the act of being EB-5 nice guys. Congressional staff recently met with USCIS, and USCIS said they want to crunch some numbers and study the economic impact of the EB-5 program. That sounds like something the OMB has done already a few years ago, and not really in the purview of the benefits-administering arm of DHS, but okay, they're trying to get more "data". Fine. They also said that they're discussing the two year job creation requirement, with a view toward finding some flexibility here. All they need to do is look at the regulations that allow for job creation within a "reasonable time." But again, very good.

And finally, USCIS has now intimated that construction jobs can count toward direct job creation as long as they're in place for two years. But this cadeau is somewhat of a Trojan horse. The USCIS reportedly believes that the jobs have to still be in place during the I-829 adjudication phase. That can add a year to the two years. No details either as to whether the same worker has to hold the position over the entire time, or whether the permanent position can be shared by several different people over time, or whether a break in between construction phases will disrupt the continuity.

Bottom line? Optimism is not insane, but pesky questions remain.

Special thanks to Steve Yale-Loehr, IIUSA, for sharing Capitol Hill intelligence (oxymoron?) for this missive.