Monday, November 14, 2011

Green Cards for Green Acres? Not So Fast, Folks

[Fraud Warning: in the preceding days, I have learned of at least one California real estate broker as well as of several unscrupulous Chinese brokers who are marketing the “buy real estate, get a green card” concept despite it NOT being law. Please be careful out there!. Sharon will soon be joining me on Immigration Insider with her Chinese language blog and she’ll be covering this issue but in the meantime, I ask our Chinese-American readers to convey this warning to folks back home: buying real estate will NOT get you a green card under current U.S. law!]


When the third breathless realtor friend called on the same day, I just had to laugh: here I was a day away from leaving for my long Asia trip and was again explaining the difference between the introduction of a bill to Congress and the process of how a bill becomes law. In a stalled real estate market, even intelligent U.S. brokers can be thrown out of whack by well-intended but most likely doomed legislation. And as Sharon and I would find out during the China portion of our trip, rumors spread quickly in this EB-5 world of ours.


I am speaking, of course, about S.1746, the recently introduced bill which proposes to solve the American real estate crisis by offering green cards to foreign investors who simply buy a home in the U.S. While the proposal has many merits and would certainly jump start the U.S. economy, there is one consideration which the press seems to have totally overlooked: the political price to pay for such legislation to actually become law, however noble and bipartisan its origin.


History Lesson


When the EB-5 became law via the Immigration Act of 1990 (IMMACT90), I got at least as giddy as my realtor friends did over this proposed bill just a few weeks ago. I believed it, too. “Finally”, I said, “America has created intelligent legislation to promote foreign direct investment”. I remember filing my first individual EB-5 – remember, it would be several years before the Regional Center and TEA concepts would be introduced – on a makeshift application form because the I-526 had not yet been invented. (Conjures up images of me in a Flintstone-esque fur suit chiseling away on a stone tablet, doesn’t it? Yabba dabba doo…). In fact, those of us in AILA who even knew what “investment-based immigration” could potentially mean back in 1991 were terrified that the initial numerical limits imposed by the EB-5 Pilot Program would vaporize in a nanosecond, a la H-1B not so very long ago, when programmers roamed America freely and the H-1A existed to admit still-desperately-needed geriatric nurses into the U.S.


That fear of visa exhaustion is what vaporized, not the visa numbers: INS (USCIS’ predecessor agency) promptly implemented EB-5 operating regulations with all the intellect, tact end efficacy of a karaoke evening with a drunken Roseanne Barr. The disclosure requirements were completely unworkable for any prospective EB-5 investor who had earned his or her money in any way other than inheritance. So, with one stroke, INS eliminated both Congressional intent AND the hope for a financial vehicle toward U.S. permanent residency; it would be a decade before things EB-5 would begin moving in earnest .


But there was more to the problem than the horrific rulemaking: the INS rules stood firm for a simple reason: there was no political pressure for INS to fix the rules. You see, many, MANY Americans took issue with the notion of “selling” green cards! I remember the CNN debates vividly: certain folks of various political persuasions had no problem allowing labor certification, National Interest Waivers, etc., but firmly resisted the notion that “America is for sale” (as I remember one pundit saying.) I was beside myself with frustration: for decades prudent, developed nations such as Canada, Australia, and much of Europe had direct investment-based permanent residency options. We were willing to allow people in and stay based on job skills (labor certification), “extraordinary ability”, etc. but somehow, the notion of attracting proven investors and their wealth to U.S. shores seemed, well, unpalatable. Something which might make Lady Liberty blush.  The sole battle cry which let the EB-5 visa become law in the first place is the same battle cry keeping it alive in “pilot” phases and the same battle cry which will, in the next two years, make it a permanent part of our immigrant visa arsenal: America needs jobs.


It’s the JOBS, Stupid


To be more specific, we’ve gone from:


    • IMMACT90: “Creating new EB-5-driven jobs will be good for America”


    • 2007: “Good grief, look at the economy, we need to create jobs FAST”


    • 2011: “Buy a House, get a Green Card”.


The rationale of the first two above is, IMHO, the only politically arguable basis which keeps the EB-5 alive and therein lies the problem: if you remove the job creation element from an investment-based green card, then you are out of political bullets. This proposed, admittedly-desperate bill to give permanent residency to folks who buy U.S. property won’t fly.


Consider the upcoming elections in Washington: just who exactly will make this new proposed bill law? The Democrats are clawing to stay on the side of an increasingly slippery iceberg; what do you supposed their core, labor-based constituency would say about lifetime permanent residency awarded to anyone with money? Even if the Dems did it, would the President put his Barack Obama on it and make it law? Both the extreme right and the xenophobic middle would have a field day on the “selling visa” angle and seal his reelection doom. As far as the Republicans: with the Tea Party movement, is there a single living Republican who will survive reelection if they support the “buy a house/get a green card” legislation? Don’t think so. It is sad to say but I believe that America has years of self-examination and painful lessons to learn before we collectively understand as a nation that it isn’t a “bad” thing to invite successful immigrants into our country to help us get out of the mess our careening spending spree of recent years got us into.


Let’s hope I’m wrong on this one.



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