The EB-5 Investor Immigration Program: Green Shoots or Chutes and Ladders?
The EB-5 immigrant investor green card program resembles a multi-country version of Chutes and Ladders, the "game of rewards and consequences". In the EB-5 edition, the ladder represents progress toward a green card and the chute is an ICE-tunneled luge ride ending in immigration court at a removal hearing.
This comparison only begins to approach the bewildering array of laws, regulations, holographic policy interpretations and artificial, bureaucratically-contrived traps for the unwary that lead up -- in two stages -- to the grant or denial to foreign investors of U.S. lawful permanent resident status.
Recently, however, the agency administering the EB-5 program, U.S. Citizenship and Immigration Services (USCIS), has made some encouraging moves. In a message from its Director, Alejandro Mayorkas, the agency announced a variety of program changes. They include the formation of the Office of Immigrant Investor Programs, to be led by an individual with business experience, though not necessarily a lawyer, the creation of a regional center Review Board, the employment of eight economists, and the hiring of attorneys with transactional experience.
Some of these green-shoots changes -- though heartening -- smack of a "been there, done that" moment. Veterans of the EB-5 program will recall the 2005 "Establishment of an Investor and Regional Center Unit," which placed control of the program within USCIS Headquarters, and the termination of the Unit by memorandum in 2009. The decision to shut down what had evolved into a useful, facilitative practice of Headquarters engagement with EB-5 stakeholders, also included the unhelpful and ill-advised transfer of authority in EB-5 matters to the USCIS's California Service Center, and the decision to allow agency communication with only one lawyer in each investor's case, even though every EB-5 matter before USCIS typically includes multiple parties with varying legal interests, each represented by separate legal counsel.
As I noted in my October 22, 2012 New York Law Journal article (coauthored with Ted Chiappari), "Dollars and Jobs for EB-5 Green Cards: A Challenging Route to U.S. Residency," this “Back to the Future” moment by itself is not enough:
[The] government immigration agencies, especially USCIS, must do more than the charge Director Mayorkas has laid down for the new EB-5 program chief. It is not enough merely to ensure “that the program is administered efficiently, with integrity, with predictability, and with an understanding of today’s business realities.” USCIS must publish proposed EB-5 regulations for public comment and then issue final rules that “maintain the integrity of the category yet are faithful to its legislative text, history and purpose, and are applied with consistent standards of interpretation.”
The sad truth is that investors pursuing an EB-5 green card put their lives and their wealth at risk. In doing so, they may well face the predicament of Jack Benny, the American comedian known for his tightwad ways. When confronted by a mugger who screamed: “Don't make a move, this is a stickup. . . . Your money or your life,” Benny paused. The mugger insisted: “Look, bud! I said your money or your life!” Exasperated, Benny responded: “I'm thinking it over!” Such, sadly, is too often the unpalatable choice faced by incautious investors who leap without first looking carefully into the still perilous, but possibly improving, EB-5 immigrant visa program.