A Pragmatic (and Realistic) Approach to EB-5 Regional Center Reauthorization

 

Developing public policy should always yield pragmatic utilitarian outcomes, i.e., the greatest good for the most people. Therefore, to pragmatically reauthorize the EB-5 Regional Center Program (“the Program”) stakeholders must consider the entire EB-5 ecosystem and what is politically possible given everyone’s needs and wants.

The EB-5 ecosystem includes regional centers, immigrant investors and their families, immigration attorneys, and state and local economic leaders. There are others, of course, but these stakeholders have the most to gain (or lose) by reauthorizing the Program. Each stakeholder has their own priorities – many overlap and are critical to the long-term success and growth of the Program while some of them are critical to protecting good-faith investors. However, when balanced against the Program’s survival, its reauthorization, all these items are “wants,” not “needs.” It is not utilitarian, pragmatic, or even realistic to pursue our wants at the expense of our most essential need.  

As we engage in the political process to reestablish the Program, we must be aware of what is politically possible. For example, if doubling the number of EB-5 visas from 10,000 to 20,000 is not politically feasible; if it is a provision that can’t pass political muster among Members of Congress and would drag down the broader reauthorization effort, is it worth insisting on including it in a reauthorization bill?

However, “understanding our political realities” does not mean capitulating or shrinking away from improving the Program beyond a reauthorization. In fact, many Congressional staffers and Members of Congress acknowledge the Program needs reform. Further, many policymakers and their staff want a long-term reauthorization as much as the EB-5 community. The key for them and for the EB-5 community is to find that politically palatable and pragmatic balance of what we all want with what we all need to ultimately assure the Program’s reestablishment and longevity.  

Among the Program reforms and improvements on which policymakers and EB-5 stakeholders agree are integrity reforms to protect investors and hold members of the EB-5 ecosystem accountable. Most also agree that immigrant investors should be permitted judicial review of administrative decisions impacting their applications and immigrant status.

It is likely there are many more items on which we agree. However, that does not mean that those items will be included in a reauthorization package. Politics and perhaps even Congressional schedules may preclude policy items that we know are beneficial. But fighting for them at the expense of everything else accomplished thus far, and worse, at the expense of a reauthorization itself, is foolish.

The EB-5 community still has an opportunity to secure a long-term program with perhaps more than a few badly needed (wanted) improvements and the entire EB-5 ecosystem will reach that goal with prudence and pragmatism.