Imminent EB5 Regulation

OMB has concluded its review of the long awaited EB-5 rule (increasing investment amounts and changing TEA definition).

Here is the link to the official announcement at OIRA/OMB: https://www.reginfo.gov/public/do/eoDetails?rrid=128858

The review was completed on June 27, and USCIS has the rule as of June 28 to publish it in the Federal Register as a Final Regulation. Here are the highlights:

• OMB decided that this was not a major rule.
• OMB decided that regulatory flexibility analysis was required – OMB also decided that small business impact analysis was required. Both these analyses have now been completed.
• OMB has sent the rule to the agency with the action “Consistent with Change”, see meaning of which below.
• The rule has been sent to the USCIS to be published in the Federal Register.

OMB made changes to the rule as sent by USCIS to OMB (USCIS likely made changes to the proposed regulation in response to the hundreds of comments received a couple of years ago). Nobody knows whether the changes (by USCIS and/or OMB) were merely editorial or substantive–they could be either or both. However, what *IS* known is that the rule is on the way to the Federal Register for publication as a final rule. See the flowchart of the OIRA regulatory review process below.

We are not sure whether anything can stop the publication of this rule at this stage. Only six people might be able to stop it: The acting director of USCIS, the acting director of DHS and the President plus three presidential advisers who have been influential on President’s immigration policy. However, it is unlikely if any of them will stop the publication of this rule at this juncture.

1. Acting Director of USCIS: Acting director of USCIS will need to sign off on the rule–that is part of the process of sending the final regulation to the Federal Register. There is no scope for any external input at this stage–it is purely an internal USCIS process. We have talked to two individuals who were involved in the rule making procedure in USCIS, and both independently confirmed this.
2. People directly upward in the chain of command of the acting Director of USCIS. This would be Acting Secretary of DHS. Unfortunately, USCIS is only a small part of the responsibilities of the DHS Secretary. EB5 does not even register on the priorities at the level of Secretary of DHS–so any intervention at this level is highly unlikely.
3. President: The President is always busy and has many demands on his time–again this is too small a matter to attract his attention.
4. Other than the official channels above there are three more individuals who can stop this regulation. The first of these is Steven Miller. However, it is implausible that Mr. Miller will intercede given that his stance has been fairly consistently anti-immigration.
5. & 6. Jared Kushner and Ivanka Trump are much more accessible than all the people above. Mr. Kushner in particular as a developer, is likely to understand the point of view of other developers intuitively. He and Ivanka have repeatedly shown the ability to swerve President Trump’s immigration policy with a whisper in his ear.

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