The Supreme Court announced Tuesday that it will decide whether President Obama has the authority to declare that millions of immigrants can remain in the U.S. illegally. The Court will probably hear arguments in the case in April and likely rule in June. As we have reported previously, the lawsuit stems from provisions in the President’s November 2014 executive order expanding the Deferred Action for Childhood Arrivals (DACA) program and creating the Deferred Action for Parental Accountability (DAPA) program. These programs would protect from deportation millions of undocumented immigrants currently living in the U.S. A lawsuit brought by 25 states has kept the executive order from going into effect. A District Court in Texas and the U.S. Court of Appeals for the Fifth Circuit have both ruled against the Administration.
Immigration was a major issue for much of 2015. Despite the negative press, the news was not all bad for immigrants. Last week we covered some of the top developments of 2015 from January to June. Here are the top ones for the rest of the year:
California moves to allow undocumented immigrants to purchase Obamacare insurance.
Immigration was the spotlight issue of 2015. Everyone was talking about it from politicians to the media to the general public. Unfortunately, the discussions were often negative and focused on keeping people out of the U.S. Even though 2015 was bad for immigration policy in a political sense, legally there were a lot of positive changes mixed in with some disappointments.
Here are some of the top developments of the year:
It is all too common for nonimmigrants to be detained by U.S. Immigration and Customs Enforcement for a prolonged period with little hope of release while their case is pending. We have a case right now of a person who has been held for over a year already. Fortunately in a recent decision, the U.S. Court of Appeals for the Second Circuit stated that this detention raises serious constitutional issues. The court decided that individuals must be given the opportunity for a bail hearing and placed a high burden on the government to establish why an individual should be denied bail.
A decision by the 5th Circuit Court of Appeals on November 9th means more delays in implementing rules to protect millions of nonimmigrants from deportation. Although the ruling is disappointing and frustrating, there is hope. The argument will now move to the US Supreme Court, where we expect the decision to be reversed.
As we’ve discussed previously, in 2014, President Obama signed an executive order expanding the Deferred Action for Childhood Arrivals (DACA) program and creating the Deferred Action for Parental Accountability (DAPA) program. A lawsuit by 25 states has kept the executive order from going into effect. The lower court in Texas held that the states could proceed with their lawsuit and the 5th Circuit has upheld that ruling. Despite this decision and the understandable fear among nonimmigrants, there are positives to this situation:
One of the biggest obstacles for undocumented immigrants seeking permanent residency is the fact that they entered the US illegally. The unlawful entry often prohibits them from getting a green card even if they have a family member who could sponsor them. However, there are some very unique exceptions. One of those involves Deferred Action for Childhood Arrivals (DACA) recipients.
The Immigrant Investor Program, also known as EB-5, is set to expire on September 30th as Congress continues to debate its merits. The EB-5 program enables foreigners to obtain legal permanent residency in the US through investment in a new commercial enterprise. Although the program brings almost $2 billion into the US annually, it has been subject to ongoing criticism. Changes to the bill have been proposed to reauthorize EB-5 so foreign investors should be prepared. We’ll analyze the changes as soon as they are passed. But why are changes being made to such a successful program in the first place?
EB-5 visas have been very effective in bringing in investment capital particularly since the 2008 financial crisis. As banks tightened lending, the investor program became the best way for a startup to obtain capital. In 2001 there were fewer than 200 EB-5 visas issued, but in 2014 there were nearly 10,000 issued.
The $2 billion in investment capital the program brings into the US annually does not account for the indirect money the program brings into the US economy. The foreign investors who enter the US with an EB-5 visa are not living in a vacuum. These individuals spend money in US stores; they buy or rent homes; they pay for services from US companies; and they pay taxes to local, state, and federal government. The program injects an extraordinary amount of money into the US economy.
So why the criticism? The EB-5 program should be the least offensive of the US immigration policy. US immigration policy costs the taxpayers billions of dollars in enforcement. The EB-5 program is generating revenue rather than creating debt. Moreover, opponents of opening US borders to immigrants by and large base their opposition on how doing so would flood the labor market, potentially lower wages, and take jobs away from US citizens. The EB-5 program is doing the exact opposite by creating jobs for US citizens.
Nonetheless, there are valid concerns about the program particularly problems of fraud that need to be rectified. Currently the SEC can step in when there are issues of fraud in an EB-5 investment. However, by the time the fraud is discovered there is nothing left for the SEC to do but clean up the mess. New proposed regulations would allow the SEC to regulate the investment process so they may actually prevent the mess from occurring in the first place. Regional Centers are also likely to be held more accountable for making financial disclosures and complying with securities laws. We welcome rules to protect against investment scams and corruption; however, these rules are likely to add complexity to the process and investors will need guidance navigating the new rules.
While the proposed changes will make the EB-5 program much more transparent, it will not change one of the program’s most glaring criticisms. Some argue the EB-5 program allows the wealthy to buy their spot at the front of the line.
It is true that the EB-5 program allows wealthy immigrants a faster route to legal status in the US. However, it is misleading to say that these foreign investors are cutting the line for a visa. The EB-5 program has visas set aside for these investors so they are not taking away a visa from someone who is already waiting.
It may seem unfair that the EB-5 program discriminates against the poor who cannot afford to participate. However, the immigration policies of the US have always been inherently unfair since the US first entered the business of controlling the movement of people. The entire concept of citizenship and the foundation of US immigration policy are rooted in discrimination against people born in certain geographic locations. Other paths to citizenship in the US are based on completely arbitrary factors such as whether there is a family member in the US, whether documents were filed a document before a particular date, whether a foreigner falls in love with a US citizen, and in many cases which Immigration Judge is assigned to a case. There is nothing “fair” about immigration laws.
US immigration policy is deserving of criticism. The US immigration system is a disaster. However, the EB-5 program is one of the very few examples where Congress got it right.
Although there will be changes to the rules, we expect EB-5 to be reauthorized. Contact us for the latest updates on the Immigrant Investor Program.
A California plan to expand health insurance to undocumented immigrants is creating a political stir. Already approved by the state Senate, the proposed legislation would allow los indocumentados (as they are known in Spanish) to buy private insurance on the state’s insurance exchange. However, even if the Assembly and Governor pass the law, it will still be subject to federal review and couldn’t be implemented at the earliest until 2017.
The 2010 federal health care law bans undocumented immigrants from buying into Obamacare plans even if they can afford to do so with their own money and don’t need subsidies. The California law wants to change that. The legislators supporting the bill and immigration advocates say that it makes no sense to bar those who can afford to buy health insurance from doing so just because they are undocumented. Under California law, undocumented immigrants can already buy private health plans not sold through the Obama exchanges.
There is more activity this week in the litigation over President Obama’s executive action deferring deportation for over 5 million undocumented immigrants. Oral arguments in Texas v. US are scheduled to take place before the U.S. Court of Appeals for the 5th Circuit in New Orleans on July 10. While the appeal has been pending, the administration been unable to implement the new Deferred Action for Parental Accountability (DAPA) program and expansion of the existing Deferred Action for Childhood Arrivals (DACA) program that was announced on November 20, 2014.
The lawsuit was brought by 26 states seeking to stop implementation. On February 16, 2015, the federal district court in Texas issued a temporary injunction blocking the United States Citizenship and Immigration Services (USCIS) from accepting applications for the 2 programs while the case was still pending in the courts. The administration asked the 5th Circuit to issue an emergency stay of the injunction allowing the USCIS to begin taking applications for the programs. On May 26th, a 3 judge panel of the 5th Circuit denied the emergency stay stating that the government was unlikely to succeed on the merits of the case. The administration decided not to appeal the denial of the emergency stay. Instead on July 10th, it will again seek to have the injunction lifted.