CRE Petitions DHS for Rulemaking to Reform the EB-5 Program to Create Jobs in Rural America & Areas of High Unemployment
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(1) Stakeholders posting comments on the petition in the space provided below
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Reforming the EB-5 Program to Create Jobs in Rural America & Areas of High Unemployment
The Center for Regulatory Effectiveness (CRE) seeks a rulemaking to amend 8 CFR §204.6(j)(6), the portion of the Department of Homeland Security/US Citizenship and Immigration Services’ regulations which requires EB-5 applicants to “show that the new commercial enterprise has created or will create employment in a targeted employment area.” CRE’s goal in filing this petition is to obtain the implementation of:
- A 2013 DHS Office of Inspector General Report Recommendation that federal regulations be updated and clarified to “give the U.S. Citizenship and Immigration Services the authority to verify that the foreign funds were invested in companies creating U.S. jobs.”
- A 2015 US General Accountability Office Recommendation that USCIS track, verify, and report “jobs created through the EB-5 Program.”
The petition would implement the above recommendations by:
- Amending the targeted employment area provision of the EB-5 program so that it creates employment for people who live in rural and high unemployment areas.
- Establishing a system for documenting and reporting on the jobs that are created by immigrant investors for people who live in rural and high unemployment areas.
This petition’s subject matter overlaps major elements of the DHS/USCIS rulemaking on modernizing the EB-5 Immigrant Investor Program [RIN 1615–AC07]. Since (1) this petition seeks the implementation of federal watchdog recommendations that predate USCIS’s NPRM and (2) DHS states in its Current Unified Agenda of Regulatory and Deregulatory Actions that there is no legal deadline for the rulemaking, DHS should address this petition prior to USCIS’s promulgating the final rule; USCIS may want or need to modify its proposal based on DHS’s resolution of the petition.
A most timely petition. It will be interesting to see how DHS handles it.
This petition seeks to correct some of the more obvious problems with EB-5 regulations, but it misses proposed reforms that are already under consideration in Senate Judy and will irreparably harm the EB-5 Program.
The CRE petition and Sen. Paul’s bill, S.727, the Invest in Our Communities Act, take different approaches to updating the EB-5 program. CRE’s petition is closely focused on addressing DHS/OIG and US GAO recommendations for the EB-5 program within the confines of existing statute. The Paul bill, by contrast, would effect changes to the program that are well outside the scope of the administrative process. The table below summarizes the key differences between CRE’s petition and S. 727.