EB-5 Alert – H.R. 1044 Passes in the House – EB-5 Implications

The House Passes H.R. 1044 to Remove the Per Country Caps

Today, the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044). The vote was 365 in favor and 65 against.

The bill, if enacted, would remove the 7% per country cap on employment-based visas, including EB-5 visas, thereby creating a single line on a first-come-first-served basis for visa availability.

Importantly for EB-5, H.R. 1044 has a 3-year transition provision. The purpose of the transition is to allow low-demand nationals to have a small pool of visas, so that the entire annual quota is not used by visa applicants already in the visa backlog. The transition allows a pool of 15% in year 1 for low-demand countries and 10% for years 2 and 3.

This transition provision is critical in EB-5. Without it, there would be even less demand for EB-5 visas than now. In Q2 of this fiscal year, only 580 petitions were filed as compared with 1,607 filed Q2 last year. The number of investors willing to wait 15-plus years in the backlog would mirror what we now see for Chinese investor demand – very low.

Yet, the Senate version, S. 386 omits EB-5 in its transition provision.

This may be inadvertent, as EB-5 was added, thanks to the House drafters, only in H.R. 1044 and was not in prior iterations of the Fairness for High-Skills Immigrants Act, most recently the Yoder Amendment.

Call to Action: EB-5 stakeholders who believe transitions that already cover other employment-based visa categories in both H.R. 1044 and S. 386 should also cover EB-5 — contact your Representatives, especially Senators.

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