There are differing opinions on how the outcome of the U.S. presidential elections might impact the EB-5 visa program. EB-5 attorneys shared their views with EB5Investors on the potential effects of either a Trump or Harris victory on the operation and continuity of this specific employment-based visa route for U.S. residency.
Some attorneys emphasized that significant implications may arise, while others downplayed any direct influence. Overall, many agreed that the Republican and Democratic candidates recognize the importance of the EB-5 visa for job creation and economic growth. However, expectations about how they would manage the program under their administration vary.
How did the Trump and the Biden-Harris administrations address the EB-5 program?
Many EB-5 attorneys say that the program has traditionally received bipartisan support. The previous Trump administration and the current Biden government have taken steps to address the program’s efficiency and processing challenges to sustain interest and support the program’s economic impact.
Yet, attorneys say whoever wins the October elections must address delays and slowdowns in the EB-5 visa application process.
For Andres Echevarria of Vivanco & Vivanco, both parties understand the program’s dual benefits for the U.S. economy: job creation and economic growth.
“While changes in the broader immigration landscape are expected with any new administration, the EB-5 program’s unique economic contributions have secured its importance across party lines. Though each administration may bring its own adjustments to program requirements or processing methods, the fundamental value of EB-5 as a driver of economic growth and employment makes it a key component of U.S. immigration policy under both Republican and Democratic leadership,” he says.
Edward Beshara, of Beshara, PA, notes that he’s witnessed both parties acknowledge the program’s contribution and pursue related projects and investors in his 40 years practicing immigration law.
“We know that the Democrats are for U.S. immigration. Alejandro Mayorkas, the current Secretary for the Department of Homeland Security, had regular meetings in his boardroom with EB-5 leaders. I personally attended many of these meetings. Mayorkas is aware of the EB-5 community and their goals. The Republicans, including Donald Trump, are also aware of the EB-5 program. He has been personally involved in pursuing EB-5 projects and pursuing EB-5 investors through his affiliated companies in the past. Both parties are also aware of the need to decrease time delays in the processing of the I-526 petitions, U.S. Consulate processing, and Adjustment of Status and I-829 filings. In addition, emphasis can be placed by both parties on prompt adjudication of I-956F petitions for EB-5 Regional Center projects,” Beshara says.
Michael Harris of HarrisLaw points out that under the Biden-Harris administration, the U.S. Citizenship and Immigration Services (USCIS) accelerated EB-5 and business immigration processing through the EB-5 Reform and Integrity Act of 2022 (RIA), which introduced new efficiency standards, such as dedicated visa set-asides for rural and high-unemployment areas.
“These measures allow USCIS to better manage backlogs and prioritize processing,” he adds.
He also highlights that since the RIA’s enactment, USCIS has publicly committed to reducing the EB-5 backlog and invested in broader efficiency initiatives that include premium processing expansions and online filing options for employment and business-related immigration categories. In combination, these improvements support faster and more predictable EB-5 processing, which is crucial to sustaining interest in the program and supporting the visa’s economic impact.”
Divided views of the impact of the election on the EB-5 program
For Charles Foster, of Foster, LLP, there are significant differences between the policies and rhetoric of the two presidential candidates.
“Depending upon who wins the 2024 Presidential elections, one thing is certain and that is we could have radically different immigration policies and perhaps legislation. [The EB-5 program] as we know it would not come under any focus or negative scrutiny by either newly elected Presidential candidate, but the Trump administration broadly speaking will take a far more restricted view of legal immigration than the Harris administration would take.”
Others don’t think that the presidential elections will have any impact on the EB-5 program.
Natalia Polukhtin of Global Practice points out that the visa program is “rarely discussed in immigration reform proposals from either candidate.”
Richard Gump of the Law Offices of Richard A. Gump, Jr., adds: “I doubt the election will have much of an effect on EB-5, which is still adapting to the 2022 legislative changes, which have hopefully lessened both fraud and misuse of TEAs. The quota for EB-5 must be increased, and processing must be more expedient, but I don’t see Congress addressing those necessary issues unless one party controls all three branches (Executive, Senate, and House). In that unlikely scenario, I could see either party trying to make a positive out of immigration by using EB-5 to encourage both investment and U.S. citizen job growth.”
Carolyn Lee of Carolyn Lee PLLC says she does not think the election will have much of a direct impact. “The EB-5 program is governed by the new statute – [RIA]. The Executive has neither the authority nor, I would think, the inclination to disturb the new law or the EB-5 program with so many other pressing priorities, both domestically and internationally,” she said.
Phuong Le of KLD LLP agrees that not much will change.
“The good news for the EB-5 industry is little will change regardless of which candidate gets elected. This is for both legal and practical reasons. From a legal standpoint, we mercifully have predictability because the RIA is law through 2027, and no president can change the program with the flick of a pen. From a practical standpoint, regardless of each party’s position on other immigration issues, such as the border wall, EB-5 has traditionally enjoyed bipartisan support as the rare program that satisfies both parties.”
What if former President Donald Trump wins?
If Trump wins the presidential elections, several EB-5 attorneys believe his potential second administration’s treatment of the investor visa program would vary in degree.
Tammy Fox-Isicoff of Rifkin & Fox-Isicoff, P.A., affirms Trump’s previous administration was “a disaster” from the EB-5 visa perspective.
“Trump never really distinguished between legal and illegal immigration. His administration promulgated delay-causing procedures that have resulted in backlogs to this day. The Trump administration disbanded Obama’s Entrepreneur in Residence initiatives. Adjudication officers during Trump’s administration were empowered to interpret legal provisions stringently. Stephen Miller, Trump’s immigration protégé, a staunch anti-immigrant advocate, has now had four years to design changes to our immigration system, to make life more difficult for those immigrating. The Biden administration’s attempts to clean-up processing issues and delays have failed. Right now, if a foreign national’s priority date is current, it can take 6 years for an adjudication on a pre-RIA I-526. This is unacceptable. I cannot even imagine how delayed EB-5 processing will become if Trump is elected.”
Charles Kuck of Kuck Baxter LLC also sees adverse consequences from a potential Trump return to the White House.
“He will have expanded powers under several recent Supreme Court decisions to make radical and negative changes to policy and procedure without oversight or real challenge. Worse, if history is a guide, and it certainly is here, I would expect the benefits agency, USCIS, to be run and staffed by ardent nativists who will grind adjudications to a halt. Trump’s election also spells doom for the US Economy with his promise of 200% tariffs on all foreign goods entering the US, a literally $4,000 tax increase to each citizen, and, worse, a sign that America is closed for business. A Trump election will not be good for America.”
Rahul Soni of Fragomen warns that a second Trump administration could face similar challenges that arose during his first term.
“During the prior Trump Administration, the EB-5 Program remained largely unaffected by his immigration policies, though timing issues arose. Investors could still file I-526 petitions, but there were significant delays in processing I-526 and I-829 petitions, along with slowdowns in adjustment of status and consular green card processing. Public charge hurdles and delays at the National Visa Center also created additional challenges. A second Trump Administration could bring similar issues, with higher costs, scrutiny, and processing delays.”
Bobi Ahn of Ahn Law Group, LLC, points out that Trump’s immigration policies from 2016 continue to affect USCIS backlogs and his proposed pledges to increase deportation and deny due process to unauthorized migrants could exacerbate processing delays.
“The above doesn’t bode well for smooth processing of EB-5 or US business immigration programs, even if he has suggested automatic green cards for noncitizen graduates of U.S. colleges.”
However, other attorneys have a more optimistic approach to a potential second Trump administration and emphasize his previous support of the EB-5 visa program.
Isabel Alcántara of Alcantara Law, LLC., agrees there will be limits to legal and undocumented immigration, yet “Trump previously made an exception for EB-5 from the immigration ban he enforced during his presidency, acknowledging it as a tool for economic growth.”
Echevarria expects the EB-5 impact to be less than in other U.S. immigration programs.
“Meaningful EB-5 reform would take an act of Congress and, at the legislative, everything is unchanged. The Republicans controlled the Senate and House before; the Republicans still control the Senate and House. Some potential impacts on the EB-5 investor visa program could emerge based on Trump’s previous stance and proposed policies, as well as insights from recent campaign statements and papers.”
Mitchel Wexler of Fragomen says Trump’s real estate approach could prove valuable for the continuity of the EB-5 visa program. “Real estate developers still see value in the EB-5 program and could find a sympathetic ear for their business model in a Trump White House.”
A second Trump administration’s potential reduction of tax liabilities for high-net-worth individuals (HNWIs) could attract more foreign, Polukhtin points out. “That said, the benefits of a lower tax burden are offset by a generally more restrictive immigration approach.”
Meanwhile, Lee has a more moderate expectation regarding Trump’s handling of the EB-5 program should he win the election. “There may be some shifts within USCIS and the State Department if Mr. Trump wins the election, as the cabinet-level officials will be Executive appointees. However, even so, I do not expect leadership to change at the Investor Program Office, at least from the top down. The agency leadership, particularly with the highly specialized work of RIA implementation, will likely not be shifted around too much.”
What could happen to EB-5 if Kamala Harris wins the elections?
EB-5 attorneys agree that the program would continue with current policies and potential reforms and that her administration could treat it more favorably than Trump’s.
Echevarria believes the Harris administration would have a “cautious and structured approach” to the EB-5 program.
Soni adds that she would continue with her ongoing approaches and “improve EB-5 access for certain nationalities.”
For Polukhtin, Harris’ focus on infrastructure development could have a positive effect in the program, “especially given the new infrastructure set-aside provisions. Additionally, her emphasis on comprehensive immigration reform, rather than restrictive measures, may appeal to investors interested in procedural program changes – such as excluding dependents from the annual visa quota.”
Nonetheless, Ahn cautions that “there is no clear record or past interest in foreign trade and/or investment by Harris to indicate what her administration’s stance would be for EB-5 and US business immigration programs.”
“She has also distinguished herself from Biden by adopting an enforcement-first approach to immigration,” Ahn adds. “The failed border deal, therefore, likely reflects Harris’ immigration agenda for 2025: a mix of tough border restrictions and policies favored by immigration advocates, which would include an increase in legal immigration. This would hopefully mean more favorable processing of EB-5 and business immigration and reduction of backlogs which would be a huge relief and incentive for more EB-5 and business investors in the U.S.”
Kuck notes that a Harris administration’s neutral stance on EB-5 would also be a consequence of “too much intransigence in the Senate among Republicans to do anything that would expand legal immigration, despite our desperate need for immigrants to continue growing our economy.”
Wexler concludes with a more moderate view if Harris ends up in the White House. “The EB-5 program will likely continue as it has under the Biden Administration: a continued low-grade hostility toward the program, but no overt efforts to dismantle [it].”
Check out more EB-5 attorneys’ opinions on the outcome of the U.S. presidential elections in our Q&A section.
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