Imputed Liability & Immigrant’s List with Ira Kurzban – Episode 57
The proposed EB-5 update is a compromise still in the works. Mona and Mark are joined by Ira Kurzban to discuss the important points that many are overlooking. They also discuss the work Ira and others are doing with the Immigrant’s List and their dedication to reforming the immigration system.
Mona mentioned that Ira is referred to as a Living Legend within the immigration community. It is only fitting that we expand more on his background
Ira J. Kurzban is a founding partner of the law firm of Kurzban, Kurzban, Weinger, Tetzeli & Pratt, P.A., located in Miami, Florida. Considered one of the country’s leading immigration attorneys, Mr. Kurzban has been extensively involved in the EB-5 program since its inception. He was lead counsel in Chang v. U.S., the most significant decision to date involving the EB-5 program. He is currently litigating a wide variety of EB-5 cases on behalf of immigrant investors. Mr. Kurzban also serves as an advisor to many regional centers concerning problems that have arisen regarding USCIS’ interpretation of the immigrant investor laws.
Over the course of his career, Mr. Kurzban has received a number of distinctions for his work in immigration law:
- For his work on behalf of refugees, the very first recipient of the Tobias Simon Pro Bono Award, presented by the Chief Justice of the Florida Supreme Court.
- For his work on behalf of human rights, recipient of the Lawyers of the Americas Award in this hemisphere given by the University of Miami School of Law.
- For his work on behalf of immigrants, selected by Newsweek as one of 100 American Heroes.
- Recipient of The Jack Wasserman Award for excellence in federal litigation.
- Recipient of The Edith Lowenstein Memorial Award for excellence in the advancement and practice of immigration law given by the American Immigration Lawyers Association.
- For more than three decades, listed in the Best Lawyers In America for his work in immigration law.
Ira is not a fan of the current proposal.
Ira first points out that we do not know when we the proposal will be implemented due to the vast number of competing interests. Waiting until the eleventh hour to present the bill to Democrats last time did not help matters.
One of the biggest issues external issues is how Targeted Employment Areas should be handled, how they should be treated, and ultimately who has the power to make the determinations (i.e. USCIS, IPO, State agencies).
Ira also believes that the most pertinent, and often overlooked, issue is the question of imputed liability for Regional Centers. This was not raised by the Public Policy Committee. For example, if a Regional Center does nothing wrong, learns of a problem (even with external agents, contractors, and subcontractors), and acts on it, it could still be held responsible and face punishment, such as disbarment or fines. The current imputed liability framework limits the tools that people within the immigration community could use to protect themselves from agency overreach.
Judicial Review:
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act. This insulates immigration agencies such as the U.S. Citizenship and Immigration Services (USCIS) and the Immigrant Investor Program Office (IPO) and stripped the federal courts in about 17 ways.
Ira believes the difficulty is compounded since people do not think about it until they need it.
Too Much Authority Been Given to the SEC?
The SEC arrived late in the EB5 program life. They did not have the opportunity to challenge the initial EB5 regulations. Ira believes there has been a failure to regulate some of the worst practices early on as they went unchecked until the SEC came in. The issue now is where should the SEC draw the line and what point is it an overreach.
Bizarre Interpretations
USCIS and the IPO have come up with some bizarre interpretations of their own regulations. Ira points out that they have many of the proper tools, but they can use them improperly. Such is the case with the example given where an EB5 investor uses a loan against their parent’s personal property to generate funds for an investment. USCIS has recently determined that this does not constitute a ‘cash investment’. Ira disagrees and believes this should be a source of funds question (as the funds are now liquid cash ready to invest). Again, the limit of judicial review and imputed liability make it hard to counteract if an agency is being overzealous.
Hard, but not impossible to act. Ira points out that seasoned EB5 attorneys such as him and Mona have the experience to mitigate beforehand and react if necessary.
Derivatives
The 10,000-person EB-5 cap should not include the dependents of immigrant investors, such as spouses and children. Currently, only about 1 in 4 EB-5 visas go towards the investors themselves. The remaining visas are used up by the spouses and children of those investors. Even without addressing this through new regulation, Ira believes that there is an interpretation of the current language and power within the authorities to not count these derivatives against the 10,000-person EB-5 cap. Ira is still working against this and Mona points out that some are being held as not to be impacted by retrogression.
Immigrants’ List
Ira and five other immigration lawyers founded Immigrants’ List in 2006 as a response to the Illegal Immigration Reform and Immigrant Responsibility Act passed a decade earlier. It was the first and remains the largest pro-immigration political action committee.
Ira acknowledges that many people are not fans of political action committees. He felt the same way himself, but upon realizing that tens to hundreds of millions are being spent for candidates in opposition to immigration policies, he felt it is and continues to be a good tool to support pro-immigration initiatives.
Since then, about 70% of the pro-immigration candidates they have supported have won elections. Some were challenging but still successful as was the case for Catherine Cortez Mastos for the Nevada seat in the U.S. Senate.
Currently, Immigrants’ List is supporting Beto O’Rourke for one of a Senate seat from Texas. O’Rourke introduced a bill that would allow for waivers for limitations first presented in the Illegal Immigration Reform and Immigrant Responsibility Act.
In addition to supporting the campaigns of pro-immigration candidates, they also recognize the contributions of elected officials through the annual Michael Maggio Awards. This year they are recognizing a Senator for their support of Deferred Action for Childhood Arrivals and Congresswoman Pramila Jayapal for her outspoken criticism of some of the Executive policies on immigration.
Support Immigrants’ List
Anyone can become a member of Immigrants’ List and U.S. Citizens are invited to support the Political Action Committee.
There are many reasons why the EB-5 community should consider supporting Immigrants’ List. Ira lays out a few, but here are a couple to note:
- They work in conjunction with American Immigration Lawyers Association (AILA) and Invest In the USA (IIUSA) in join efforts to support fair regulations.
- Working with agencies to enforce current regulations fairly.
Visit http://www.ImmigrantsList.org/ to learn more.