SB 386 vs Relief Act and the State of Play in Washington with & Tammy Fox-Isicoff – Episode 91
Draft legislation around immigration is currently making its way through Congress. On this episode, Mona and Mark are joined by Tammy Fox-Isicoff to discuss how each of the proposed bills would impact EB-5. Listen in for Tammy’s insight on the downside of SB 386 and learn how the RELIEF Act eliminates backlog and keeps families together.
The tech sector is advocating for SB 386, despite its failure to rectify the backlog crisis and its burden on Indian immigrants. In fact, SB 386 would largely end foreign direct investment in all 50 states should the legislation pass. So, what are the fundamentals of SB 386? How would this legislation change the EB-5 program? And is there an alternative that addresses the shortcomings of SB 386?
Tammy Fox-Isicoff is a former trial attorney for the US Immigration and Naturalization Service and Special Assistant US Attorney. She was named Best Lawyer on Immigration Law in South Florida in 2012, 2016 and 2019. On this episode of EB-5 Investment Voice, Tammy joins Mona and Mark to discuss the proposed legislation that would impact the EB-5 program, including HB 1044, SB 386 and the RELIEF Act.
Tammy walks us through the fundamentals of SB 386, explaining how the bill eliminates per country quotas and how it would impact Indian immigrants—should EB-5 be included in the proposed legislation. She compares SB 386 with the RELIEF Act, describing how the latter both solves the backlog crisis and keeps families together. Listen in to understand what the immigration landscape might look like should SB 386 pass and learn what we can do as an industry to advocate for the RELIEF Act.
The Fundamentals of SB 386
- SB 386 was introduced in the Senate on November 5, 2019, by Senators Graham, Cornyn and Rounds. Known as the Immigrant Investor Program Reform Act, the bill seeks to take dependents out of the quota counts and generally optimize the program.
- At present, there’s a 7% quota for every country in every category of the employment-based immigration system. India has far exceeded this cap, resulting in a backlog of 50-plus years for anyone starting a work-based petition today. SB 386 would eliminate these per country quotas.
- HR 1044 (the bill comparable to SB 386 in the House) sailed through that chamber because it has the full support of the tech sector. Once the public became aware of its details, though, a resistance movement sprang up to advocate for an increase in the number of available visas to accompany the lifting of per country quotas.
- There is confusion around whether EB-5 will be included in SB 386. If it IS included, it will have the greatest impact on Indian applicants, putting Chinese investors (who comprise 85% of the backlog) in line before the Indians.
The Disadvantages of SB 386
- SB 386 has a transition period of only two years—and that doesn’t include any EB-1 classifications. There will be no transition period for intercompany transferees or researchers and professors with extraordinary abilities, for example.
- Should SB 386 pass, the backlog for EB-1 classifications will immediately jump to well over 10 years, and the US will lose out on a diverse workforce well into the next decade. This would also affect artists, entertainers, investors, and anyone else outside the H1B category.
- H1B would be the only classification providing a continuation of status through the immigrant visa process or through adjustment. Most other categories would effectively end, as foreign nationals would cap out on their time in the US long before any immigrant visa would become current.
The Fundamentals of the RELIEF Act
- Sponsored by Senator Lee of Utah, the RELIEF Act provides a transition period that phases out per country quotas over the course of five years and offers a pool of new green cards equal to the existing backlog. By comparison, SB 386 would perpetuate the backlog, whereas the RELIEF Act would eliminate the current and future backlog.
- The REFIEF Act also treats family F2A categories (lawful permanent residents sponsoring spouses or children) as immediate relatives. And that would free up to 88K visas which can be used for F-1 categories.
- The RELIEF Act helps families a great deal by raising the per country cap on family immigration to 15% and eliminating the per-country cap on employment-based immigration. It also exempts the spouses and minor children of primary applicants from being counted in the greed card process, tripling the number of visas available and stopping future backlogs from occurring.
The Consequences of Passing SB 386
- Should SB 386 pass, Tammy argues that many immigration attorneys will no longer have a practice. The legislation will end immigration from 194 countries, thus eliminating diversity in the program.
- Without the lock-in child status protection (that the RELIEF Act does incorporate), families will continue to be separated. Tammy hopes that Senator Durbin will continue to hold strong in objecting to SB 386.
- As the EB-5 industry, our best hope for passing the RELIEF Act over SB 386 would be to gain the support of the tech sector. We can also inspire action by contacting our Senators to explain how the RELIEF Act provides a permanent solution to the horrible backlogs that currently plague both workforce and family immigration.