Senators Leahy and Grassley Introduce Legislation to Reform EB-5 Program

On June 3, 2015, Senators Leahy (D-VT) and Grassley (R-Iowa) of the Judiciary Committee introduced legislation to significantly reform the EB-5 Pilot Program, commonly known as the Regional Center program, which is due to sunset on September 30, 2015.  The proposed changes mirror U.S. Department of Homeland Security, Secretary Jeh Johnson’s written request to the Judiciary Committee of April 27, 2015, in which he made clear that DHS wants changes to the EB-5 Pilot Program, and beyond.  The Leahy-Grassley bill seeks to extend the EB-5 Regional Program until September 30, 2020.  It does not envision making the program permanent. 

 

If implemented, the Leahy-Grassley legislation will have a significant impact on Regional Centers and investors alike.  The significant changes proposed to the EB-5 Program by the Leahy-Grassley bill are as follows:

 

1 – Raise the minimum investment amount for all EB-5 investors to $800,000/$1,200,000, respectively.  The current $500,000 /$1,000,000 investment requirements for the EB-5 program have not been increased since the program’s inception in 1990.  New investment amounts proposed in the Leahy-Grassley bill raise the required investments to $800,000/$1.2 million.  Based on Secretary Johnson’s earlier letter, it is important to note that USCIS intends to raise the minimum investment amount by regulation on its own, even if Congress does not do so by statute in its review of the EB-5 Pilot Program.  In addition, it is proposed that inflation tables be used to adjust the minimum investment amount on a regular basis moving forward. 

 

2 – Establish an “EB-5 Integrity Fund.”  In an effort to cover the costs associated with audits and site visits to detect fraud in the United States and abroad, the bill proposes an annual $20,000 fee for all regional centers.  As part of increased oversight of the EB-5 program, USCIS would also create a formal accountability and reporting system in which Regional Centers would be required to publicly disclose annual reports to facilitate increased credibility and transparency.  

 

3 – Increased oversight of TEA designation.  According to DHS, there may be “gerrymandering” in the process of TEA designation.  In order to avoid any possibility of impropriety during the TEA designation process and ensure areas of high unemployment in rural areas are supported by the EB-5 program, it is proposed that only a limited number of contiguous census tracts be used for the designation process.

 

4 – Expanded authority to terminate Regional Center designation.  Currently, continued Regional Center designation is based solely on whether the Regional Center’s operation is contributing to economic development.  The new legislation proposes that USCIS be granted the authority to terminate Regional Center designation if there is a significant risk of fraud or abuse, and to deny or revoke any EB-5 Regional Center designation or application due to fraud, misrepresentation, criminal misuse, or threat to national security.

 

5 – Authorize USCIS to fine or temporarily suspend Regional Centers.  The bill also requests that USCIS be given the authority to issue fines or temporary suspensions to Regional Centers where there is fraud, misrepresentation, criminal conduct, or national security concerns.  The fines could be as high at 10% of the EB-5 investment amount.

 

6 – Regulate the principals of Regional Centers.  DHS also seeks to prohibit individuals with criminal violations or fraud/securities related civil violations from participating in owning and leading Regional Centers or related commercial enterprises.  Moreover, Regional Center principals must be U.S. citizens or green card holders.

 

7 – Investment proposals must be reviewed by USCIS prior to investor filings.  This means that Regional Centers would have to file and have approved business plans and supporting documents prior to any individual investor filing.  This appears to be another change DHS is ready to implement by regulation even if Congress does change the statute based on Secretary Johnson’s written request. 

 

8 – No credit for tenant–occupancy jobs.  The proposed legislation makes it clear that jobs created based on tenant occupancy will not count towards EB-5 job creation. 

 

9 – Establish a premium processing option.  In an effort to reduce petition processing times for investors, the Leahy-Grassley legislation proposes a premium processing option for EB-5 petitions for the first time in the program’s history. 

 

As we wait for Congress to fully take on the re-authorization of the EB-5 Pilot Program, we anticipate a great deal of activity on this topic during the summer months.  There is no question that the DHS wants changes to the EB-5 program and to expand its authority in implementing and managing the program.  Furthermore, based on the introduction of the Leahy-Grassley bill, it appears that Congress may be ready to make major changes of its own to the EB-5 program.