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Immigration Daily December 5, 2022
Previous Issues
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Congress to halt EB5

Table of Contents:

  • Eliminating country quotas will halt EB5
  • How we got here
  • Who is pushing this and why
  • Act now to stop Congress

*******

Eliminating country quotas will halt EB5

  • Congress is considering eliminating country quotas for employment-based immigration, by enacting the “Eagle Act” H.R. 3648. Currently, Indians awaiting EB2/EB3 have a prospective waiting time of 100+ years, while the waiting time for all other countries is +/-5 years.  If country quotas were eliminated, the waiting time for EB2/EB3 for all countries would rise to 15+ years and going forward 80% of EB2/EB3 visas would be awarded to Indians.
  • Similarly, currently Chinese EB5 applicants have a 20+ years wait while all other countries have 0-6 years of waiting.  If country quotas were eliminated, the waiting time for EB5 for all countries would rise to +/-7 years, and going forward 80% of EB5 visas would be awarded to Chinese. Unlike EB2/EB3 which would be very attractive with a 7 year wait, EB5 at a 7 year wait would attract almost only Chinese. However, with the current covid/political situation in China, EB5 from China may only be a trickle in 2023. Thus EB5 will come to a screeching halt in 2023 if country quotas are eliminated. 
  • It is not clear how the Eagle Act would interact with the RIA, specifically the set asides. Generally, later statutes trump earlier statutes, the Eagle Act may thus imperil set asides.  

How we got here

  • 2018: The first attempt to pass the Eagle Act was in the lame duck session of Congress in 2018. This attempt failed to clear the House.
  • 2020: In the lame duck Congress of 2020, the Eagle Act was passed in the House, but Senator Durbin killed it in the Senate (he is #2 Democrat in the Senate, chairman of the Judiciary Committee, and the Senator leading the Democratic charge on immigration issues).
  • 2022: This year, the supporters of the Eagle Act have made concessions to Senator Durbin and he is now supporting the bill, facilitating passage in the House and the Senate, becoming law, thus almost killing EB5, at least for 2023.

Who is pushing this and why

  • The Eagle Act is being pushed by the 5 big tech companies: Apple, Google, Amazon, Facebook and Microsoft, and is also supported by smaller tech companies. People in India are becoming aware that it is now impossible to get a green card through employment, so the best and the brightest in India are increasingly choosing to stay in India and are foregoing immigrating to the US. Since the tech sector has no other assets aside from its workforce, the entire American tech sector including Apple, Google, Amazon, Facebook and Microsoft, face a dire future if EB2/EB3 from India cannot be reinvigorated. The elimination of the country quotas is a lifeline for the American tech sector, so the resources behind the Eagle Act are formidable indeed.
  • Immigration Voice is the lobby of tech Indians who are in a desperate position with 100+ year waits and are taking aggressive action without a sophisticated understanding of the political dynamics of immigration in the US. Apart from not getting their own green card, their India-born children who have grown up in the US most of their lives are in danger of “aging out”, being forced to return to India, a country completely alien to them.

Act now to stop Congress

  • In the House: A vote is expected in the House next week, probably on Wednesday. There appear to be sufficient votes to pass the Eagle Act in the House due to Speaker Pelosi’s excellent track record on the House floor. At least 5 Democratic Representatives need to oppose this bill to stop passage (all Republicans in the House are expected to vote against the bill). 
  • In the Senate: Once the House passes this bill, it will be brought up in the Senate through unanimous consent. Any Senator can object to unanimous consent passage (opposition to the bill is not necessary for objection, merely an expressed preference that the committee of jurisdiction discuss this bill before bringing it to the Senate floor). To kill this bill in the Senate, two or more Senators need to object (if it was just one Senator, he/she could very likely be mollified just like Senator Durbin was).
  • If this bill is not killed, the EB5 industry faces collapse. We encourage industry members to contact their Democratic Representatives and their Democratic and Republican Senators as soon as possible, and urge them to oppose H.R. 3648. Act Now!
Please let us know your thoughts by writing to us at editor@ilw.com

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