REGULATIONS VS LEGISLATION “…If confirmed, I commit to finalizing the proposed EB-5 rules…” USCIS Director Cissna

Author: Mona Shah, Esq.

At Cissna’s Senate Confirmation hearing, Cissna was asked: “On January 13, 2017, the Obama Administration proposed rules to improve federal oversight of the EB-5 program and curb some of the worst abuses within it. These proposed rules will soon be finalized and implemented by USCIS. However, as The Washington Post and others have reported, large real estate developers – including those with ties to Jared Kushner’s family business – actively oppose these rules. This raises the concern that USCIS could face pressure from the White House to dilute or alter the proposed rules. On May 24, 2017, during your nomination hearing before the Senate Judiciary Committee, you committed to finalizing and implementing the proposed EB-5 rules. If confirmed as Director of USCIS, will you stand by that commitment, regardless of any external political pressure to do otherwise?”

Response: “If confirmed, I commit to finalizing the proposed EB-5 rules according to the process set forth in the Administrative Procedure Act and related DHS and OMB guidance.” [1]

It has been rumored that Cissna is a stickler for Regulations[2] and by all indications, this view may be justified.  Lee Francis Cissna was sworn in as Director of the USCIS on October 5, 2017 and by  December 18, 2017, USCIS through the Office of Management and Budget (OMB), released a new EB-5 deadline advancing the “Final Action Date” for regulations dealing with EB-5 investment amounts and TEAs (RIN 1615-AC07) to February 2018 (from April 2018).  At the same time, on December 13, 2017, the House Appropriations Committee introduced a Continuing Resolution that would temporarily extend federal funding and maintain current federal operations (currently authorized to December 22) until January 19, 2018. Although the provisions do not mention EB-5 per se, it is highly probable that EB-5 will hitchhike the CR and get another short extension to next year.

So what will it be? Regulations or Legislation? 

Certainly, there is no consensus between the two, the fact that Congressional intent as expressed in draft legislation is so dissimilar from what DHS put in the proposed regulations, advancing the date to February looks like positive intent to really get the EB-5 regulations done before legislation can be passed. In addition, as stated earlier[3], Director Cissna is a former Grassley Staffer. During his time at Senator Grassley’s office, Cissna assisted with the American Job Creation and Investment Promotion Reform Act of 2015– a bill that proposed a comprehensive overhaul of the EB-5 program.  At the joint USCIS-IPO conference held at Baruch College on November 11, [4] Angel Bruner of EB-5 Capital, stated that concessions were continually being made to the Judiciary Committee and at each juncture, the goal posts shifted! It’s quite obvious that Senator Grassley would prefer the bureaucratic rigidity of regulations over legislation through compromise.

The Notice of Proposed Rule-making (NPRM) was published January 2017 [5]. In April 2017, the public responded to the NPRM with persuasive arguments, data and criticism, nearly all commentators argued strongly for the modification of the increase in the investment amounts. It should be noted that USCIS as a federal agency must take these comments into account.

While the  regulations relating to investment amounts and TEA designation have been moved forward,  the OMB Unified Agenda has pushed back the estimated date for a Notice of Proposed Rulemaking for RIN: 1615-AC11, the EB-5 rule dealing with regional center designation (relating to the exemplar filing process, continued regional center participation, and regional center termination.)  

If final regulations were published in the Federal Register in February 2018, it could go into effect as early as March 2018, and apply to petitions filed on or after the effective date. On the other hand, the increasingly real threat of imminent regulations may finally inspire Congress and industry leaders to finalize EB-5 legislation as soon as possible instead.

 Please see below (*courtesy of IIUSA)