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A Federal Lawsuit and a Senate Bill Look to Reduce the Impact of New Regulations Affecting EB-5 Visas

In November, new federal regulations went into effect that made it harder to obtain an EB-5 investor visa. Now, steps are being taken in various places to attempt to roll back these new regulations. The new regulations are being challenged in the federal courts. Members of Congress are also considering a new bill to ease its effects. What you should take away from all this is that EB-5 remains a viable option for obtaining a visa but that the rules are potentially changing. To make sure you are best positioned to respond to these changes and get the visa you seek, be sure you have a knowledgeable Florida immigration attorney representing you.

The new rules went into effect with an ostensible goal of curbing fraud and other misuse of the EB-5 visa program. The changes meant that the minimum amount that a foreign citizen was required to invest in order to qualify for an EB-5 visa went up to $900,000 (from $500,000) in targeted employment areas, and up to $1.8 million (from $1 million) in all other areas. The regulations shifted the responsibility for designating targeted employment areas from the states to the federal government.

The new regulations also shrank the number of areas that qualified as targeted employment areas. This change has the potential to have a massive impact on development in parts of Palm Beach and Miami-Dade Counties, which would stand to lose targeted employment areas in several key areas.

In the United States Senate, a bipartisan legislative effort has emerged to ease some of the new limitations. Democrat Chuck Schumer and Republicans Lindsey Graham and John Cornyn have all backed a bill that would drop the current $1.8 million level (for investment outside targeted employment areas) back down to $1.1 million until 2025.

The new regulations are unconstitutional, according to one Florida regional center’s lawsuit

In addition, a regional center here in Florida is attacking the new regulations in court. The center argued that the new regulations violated several federal statutes and Constitutional provisions. The lawsuit alleged that the rules violated the 10th Amendment to the Constitution. That amendment says that any power not explicitly given to the federal government by default rests with the states. By shifting the task of designating targeted employment areas from the states to federal agencies, the rules unconstitutionally took away part of the states’ ability to conduct government and facilitate economic growth, according to the lawsuit.

The center also argued that, because the federal government did not do certain mandatory impact analyses (like an economic impact assessment,) the new regulations violated the Administrative Procedures Act. The regional center further accused the Department of Homeland Security of going beyond the agency authority it was granted under federal law. If the center is successful, it is possible that the rules could be rolled back entirely.

Like many areas of the federal statutes and federal regulations, the law is frequently changing. If you are considering an EB-5 investor visa, you need to be sure you are making knowledgeable decisions based on the current state of the law. For the most up-to-date knowledge and keenest advice, count on the experienced South Florida immigration attorneys at Stok Kon + Braverman. Our attorneys have many years of successfully helping immigrants in pursuit of the visas they seek.

Contact us online or by calling (954) 237-1777 to schedule your consultation and find out how this firm can help you.

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