The Cuccinelli campaign has been after Terry McAuliffe for weeks on alleged ethical questions regarding the use of the EB-5 visa to encourage foreign investment in new or troubled businesses.  I am not terribly interested in the ethical issues, when the Times-Dispatch calls the Democrat “Tricky Terry” on its editorial page no more need be said.

But I must say it:  Why have a EB-5 program in the first place?  Here is the USCIS webpage on this program.  It reads like the income tax code!

USCIS administers the Immigrant Investor Program, also known as “EB-5,” created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a pilot immigration program first enacted in 1992 and regularly reauthorized since, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.

All EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise:

• Established after Nov. 29, 1990, or

• Established on or before Nov. 29, 1990, that is: 1. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or 2. Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs

Yeah, it’s like a nightmare from the IRS.  I told you!

But why?  Do we need foreign investment so bad that we have to invite immigrants to come in and bring their money?  To produce only TEN jobs?

• Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.

• Create or preserve either direct or indirect jobs:

  • Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.

  • Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.

Even if it is ten US jobs for every EB-5 immigrant, it seems a small result for immigrant investors to be admitted, skipping the line so to speak, legally, to get just ten new jobs.

This program also is in effect legalized corruption.  An immigrant is in effect offering a gift (the promise of ten US jobs) for legal entry into the United States.  That would, if not authorized by law, be problematic of the Hobbs Act. Perhaps this McAuliffe issue impel Congress to revise if not repeal this program.  I am not sold on either keeping or repealing the program but it needs review.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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