Latest / IMI Podcasts / #11: Fighting City Hall and Winning: Matt “Sue ‘Em” Galati on Making the US Govt. Follow its Own Rules

Transcript

#11: Fighting City Hall and Winning: Matt “Sue ‘Em” Galati on Making the US Govt. Follow its Own Rules · IMI Podcasts

0:03
SPEAKER_01: Ladies and gentlemen, it's 7 p.m.
0:05
SPEAKER_01: in Dubai, 3 p.m.
0:06
SPEAKER_01: in Lisbon, 11 a.m.
0:07
SPEAKER_01: in St.
0:07
SPEAKER_01: Kitts.
0:08
SPEAKER_01: Welcome to a new episode of the Mobility Standard, the podcast where we dissect current events, trends, and crucial questions related to investment migration.
0:18
SPEAKER_01: I'm your host, Christian Nessim, editor of Investment Migration Insider.
0:22
SPEAKER_01: And with me in today's episode, I have my co-host Rogelio Casares, as well as our guest this week, Mr.
0:28
SPEAKER_01: Matt Galati, an American immigration lawyer who's made a big name for himself as one of the world's foremost EB5 litigation attorneys.
0:36
SPEAKER_01: We spoke to him about how and why he sues various departments of the US government on behalf of his EB5 clients, as well as why he's been so successful at it.
0:46
SPEAKER_01: We also had Matt explain in layman's terms what's been going on with the EB5 regional center program over the last couple of years.
0:54
SPEAKER_01: Why does the price keep switching back and forth?
0:56
SPEAKER_01: Why was the regional center program not reauthorized?
0:59
SPEAKER_01: What legal or regulatory events and dates should we be keeping an eye on to understand what might happen to the program in the next few months?
1:07
SPEAKER_01: And what if there isn't any reauthorization?
1:09
SPEAKER_01: We also spoke about the nature of the dissonance between the EB5 program's two main lobby groups, the IISA and the EB5 Investment Coalition.
1:19
SPEAKER_01: What specifically do they disagree about, and will they eventually be able to coordinate their work for the benefit of the program?
1:26
SPEAKER_01: Now that there's no regional center program, what are American EB5 attorneys doing to fill their time?
1:32
SPEAKER_01: Are they pivoting to other programs, focusing on different types of visas?
1:36
SPEAKER_01: Matt has some answers.
1:38
SPEAKER_01: All of that and a great deal more in today's episode of the Mobility Standard.
1:42
SPEAKER_01: I'd like to remind you that you can follow all of IMI stories on our website, imidaily.com, on our mobile phone apps, in our free newsletters, as well as on your favorite social media network.
1:52
SPEAKER_01: You can also follow this podcast on Spotify, Apple Podcasts, and most other podcast platforms.
1:58
SPEAKER_01: With the preambles out of the way, let's get the show on the road.
2:07
SPEAKER_01: Matt, welcome to the show.
2:30
SPEAKER_02: Yeah, sure.
2:31
SPEAKER_02: So my name's Matt Galati.
2:33
SPEAKER_02: I am a U.S.
2:35
SPEAKER_02: immigration attorney providing services for most kinds of visas.
2:39
SPEAKER_02: Today we're going to talk about litigation, which I've been focusing the majority of my practice on for the past uh two years or so.
2:47
SPEAKER_02: I got my start in the EB5 industry uh a little over 10 years ago.
2:52
SPEAKER_02: I was fresh out of law school and I went to work for one of the high most highly reputable EB5 firms in the country.
3:00
SPEAKER_02: Um I've been involved with EB5, you know, when kind of like the modern EB5 was in its infancy to the heyday of lots and lots of Chinese investors all day long, and then through um, you know, the the current times with the new regulation that was ultimately overturned and all of the litigation that has been involved in the industry since 2019.
3:25
SPEAKER_02: So I was named a top EB5 litigator by EB5 Investors Magazine earlier this year.
3:32
SPEAKER_02: And I also presently serve on the American Immigration Lawyers Association's high impact litigation committee, kind of nationally, just a group of immigration lawyers turned litigators to push back against USCIS and administration.
3:46
SPEAKER_01: Those are some great achievements there, Matt.
3:49
SPEAKER_01: Uh some nice accolades, especially for well, uh someone at the tender age of what exactly?
3:58
SPEAKER_02: Let's just go with mid-30s.
4:00
SPEAKER_01: Okay, we'll go with mid-30s then.
4:03
SPEAKER_01: Um, you know, Matt, I've often read your articles in IMI, of course, but also on your own firm's website.
4:10
SPEAKER_01: I follow you on LinkedIn and Twitter, where you make pithy comments.
4:14
SPEAKER_01: Um, and over time I've come to understand that you have basically the same solution to almost all immigration problems, and that is sue them.
4:26
SPEAKER_01: And to most people in the global investment migration space, the thought that you might file lawsuits against the very government that you're soliciting for immigration purposes never even occurs to them.
4:38
SPEAKER_01: But you do it all the time, and um you're getting results, and part of the reason, I guess, is that, well, number one, the United States is a litigious society that uh respects the legal process even as it applies to the authorities.
4:56
SPEAKER_01: But another reason is that EB5 legislation and regulation is complex, which you know it leaves room for legal interpretation, and it's also governed by multiple agencies and bureaus, which means that there are multiple avenues for uh attack that a lawyer might rely on.
5:15
SPEAKER_01: There are many different institutions and individuals that you can sue so that you know you can come up with different strategies for getting what you want.
5:24
SPEAKER_01: So I'm wondering if you can tell us just briefly uh how and why you sue the US government and uh how you're getting results on behalf of your clients.
5:33
SPEAKER_02: Yeah, sure.
5:33
SPEAKER_02: I I appreciate your observation.
5:35
SPEAKER_02: I'll tell you that uh Twitter is is probably closer to pro wrestling than it is reality.
5:42
SPEAKER_02: So I don't know if if I'm coming across as sue them as the solution for everyone.
5:47
SPEAKER_02: I I I think I would take a little bit of issue with that.
5:50
SPEAKER_02: But yes, thank you.
5:51
SPEAKER_02: Uh we have achieved enormous success um and it has been quite effective for hundreds of clients at this point.
6:00
SPEAKER_02: Um okay, so you know, you kind of hit the nail on the head.
6:04
SPEAKER_02: We're we're a nation of laws in the United States, and um under the United States agency practice generally, right, litigation is quite common.
6:16
SPEAKER_02: So while it might seem kind of new to immigration, you know, there is enormous case law dealing with the Environmental Protection Agency, for example, and companies seeking permits or what have you, suing against the EPA.
6:30
SPEAKER_02: Social Security is another great example where there's just lots and lots of litigation.
6:36
SPEAKER_02: So I think immigration practice, immigration bar is kind of maturing into our brother and sister bars in other kinds of agency practices.
6:46
SPEAKER_02: Um we've seen an explosion in lawsuits, uh, not just for myself and my practice, but across the board.
6:54
SPEAKER_02: And there's a number of factors that have contributed to that.
6:57
SPEAKER_02: Um without getting too political.
7:00
SPEAKER_02: Um, I will tell you that the previous administration, one of their tactics was to purposely slow down the awarding of immigration benefits.
7:09
SPEAKER_02: That's certainly true in investment migration, but it's also true in all other kinds of immigration benefits.
7:16
SPEAKER_02: If you're doing a spousal visa, for example, a simple work permit, what have you.
7:21
SPEAKER_02: And so um kind of putting this into context, and and I'm sure Rogelio um remembers this as well.
7:29
SPEAKER_02: You know, in 2019 in EB5, we just saw a massive slowdown in in adjudication.
7:36
SPEAKER_02: So we're gonna shut down, or excuse me, we're in a regional center lapse right now.
7:41
SPEAKER_02: At the beginning of 2019, there was also a lapse that took place.
7:45
SPEAKER_02: And for whatever reason, once that lapse ended, the government never quite got back up to the speed it was operating at in 2018, 2017, and years prior.
7:56
SPEAKER_02: And you know, while while I can't point to any direct evidence of this, I think that individuals such as myself and my colleagues in the immigration bar, by filing numerous lawsuits because the agency wasn't doing anything in 2019 throughout most of the year, we finally got the agency moving again and paying attention to EP5 investors and their petitions.
8:17
SPEAKER_01: Yeah, so when when you're first of all, let's clarify who is it, what type of clients is it that you represent when you're suing these government agencies?
8:27
SPEAKER_01: And what is it you're trying to get out of those suits?
8:31
SPEAKER_01: Because uh, I mean you've pointed out to me before that it's very rare for these cases to go to trial, right?
8:38
SPEAKER_01: So in the in the absence of a verdict, what does victory look like to you?
8:44
SPEAKER_01: I mean, you might file a motion or there might be a settlement of some kind.
8:49
SPEAKER_01: Um, what is it that um are are these are your clients people who are are waiting an unreasonably long time for adjudication and then you force the agency to adjudicate?
9:01
SPEAKER_01: Is that how it works?
9:02
SPEAKER_02: So there's two basic kinds of lawsuits, right?
9:05
SPEAKER_02: Um you have denials, right?
9:09
SPEAKER_02: So Joe investor invested in EB5, his case got denied.
9:12
SPEAKER_02: You can take that to federal court, and basically a federal judge will kind of sit as kind of like a court of appeals, so so to speak, to review what USCIS, the principal agency in the US that delivers immigration benefits, to review what they did and make sure it was in accordance with law.
9:31
SPEAKER_02: Um thankfully, denials are relatively uncommon in EP5.
9:35
SPEAKER_02: Sure, we've we sued on them, but it's not it's not something that you see so often, which which is a good thing.
9:43
SPEAKER_02: Um delays are far more common.
9:46
SPEAKER_02: And with delays, what I was alluding to earlier is that the agency simply isn't moving fast enough.
9:51
SPEAKER_02: Fast enough, speaking in a historical sense, fast enough in the sense of Congress.
9:57
SPEAKER_02: So under the US um agency laws, right, we have something called the Administrative Procedure Act, which allows whoever is applying for a benefit with the federal government, more or less, to bring a lawsuit if action on that benefit is either unlawfully withheld or unreasonably delayed.
10:20
SPEAKER_02: And so I've had the pleasure of representing hundreds of EB5 investors that have alleged that their initial petitions in EB5 called I-526, that those are delayed, um, that their applications for green cards or the benefits that go along with the green cards while you're waiting are delayed, as well as the condition removal of the IA29s, that those are delayed, or in those cases.
10:44
SPEAKER_01: So just to clarify here, uh when you say unreasonably delayed, like what is the standard for determining that something is unreasonably delayed?
10:53
SPEAKER_01: Are these the uh timelines, uh the deadlines that the agencies themselves set for themselves?
11:00
SPEAKER_01: Or I by I mean, what is the what is the yardstick by which you measure what is reasonable and unreasonable in terms of delays?
11:09
SPEAKER_02: Yeah, that's that's a great question.
11:11
SPEAKER_02: And like a typical American lawyer, I'm gonna have to answer that with it depends, right?
11:16
SPEAKER_02: So case law says, look, if you're applying for an agency benefit, um, it should be awarded in a matter of months, not years, right?
11:25
SPEAKER_02: And if you take a look at the Immigration and Nationality Act, while not binding USCIS specifically, Congress said if you're applying for an immigrant application, immigrant visa, immigrant petition like EB5, those kinds of benefits um should be awarded within a matter of months, weeks or months, not years.
11:47
SPEAKER_02: But we look at the the processing times, which are all over the place and constantly changing, you know, it's very clear that the agency, despite spending, you know, requiring investors to pay over$3,000 for their cases, which by the way are the most expensive in the immigration system for individuals, despite that hefty price tag, they're simply not meeting the congressional goals that were set out for them.
12:11
SPEAKER_01: Yeah, so what I've understood from uh the wonderful EB5 blog of uh Suzanne Lezitsky.
12:17
SPEAKER_01: Uh I'm a big fan too.
12:19
SPEAKER_01: Yeah, yeah.
12:20
SPEAKER_01: It's a great, great source of info for us here at IMI.
12:24
SPEAKER_01: Um what I've understood is that you know, because the operations at the uh investor program office are financed by the applicants, and further, because that same office can decide the price of that at its own discretion, uh they can they can raise the price to whatever it is they need to be able to provide effective and efficient processing, it's unreasonable for them not to be effective and efficient in their processing because they you know, if they need more capacity, they can ask for you know a higher application fee to finance that additional capacity.
13:06
SPEAKER_01: Is that right?
13:07
SPEAKER_02: That is that is correct, right?
13:09
SPEAKER_02: So US taxpayer dollars don't really go into the adjudication of most immigration benefits.
13:16
SPEAKER_02: Now, there's some examples where they do, like asylum, for example, that might require funding from Congress, but the idea that the US taxpayer has to pay for or even subsidize an immigrant benefit, especially when a CB5, is completely unfounded.
13:32
SPEAKER_02: So the agency is required by law to charge what it takes to adjudicate a case.
13:37
SPEAKER_02: And if you look back at old statistics, you know, an I-526 used to cost$1,500 through 2016.
13:45
SPEAKER_02: And then they more than doubled it to$3675 in December 2016.
13:49
SPEAKER_02: So the agency is charging a lot more money now, but they're also taking a lot longer to get through them.
13:54
SPEAKER_02: And that just doesn't make sense.
13:56
SPEAKER_02: Volume is significantly lower.
13:58
SPEAKER_02: We don't have China as involved with the program as it used to be.
14:02
SPEAKER_02: And so something there isn't quite adding up.
14:06
SPEAKER_02: And we, of course, allege that in our complaints with our lawsuits, you know, the agency has, by definition, they should have the resources they need to get through these backlogs, but for whatever reason, they're not using them effectively.
14:19
SPEAKER_01: Right.
14:20
SPEAKER_01: But so what happens then if say that you you bring one of these suits on behalf of a client from a country that's in retrogression, for example.
14:29
SPEAKER_01: Uh, what does uh what does the government argue then?
14:32
SPEAKER_01: I mean, uh is that is that an unreasonable timeline, or is that can they say no, this is related to the the quota?
14:41
SPEAKER_02: I generally don't.
14:43
SPEAKER_02: Um I generally don't bring lawsuits.
14:46
SPEAKER_02: So right now there's only one country that's in EB5 retrogression, setting aside the fact that the program's lapsed right now.
14:52
SPEAKER_02: But if if you're bringing a lawsuit on behalf of a Chinese-born investor, both the investor and their spouse were born in China, then you would be subject to retroaggression.
15:02
SPEAKER_02: And there may be reasons why you wouldn't want to bring that, right?
15:07
SPEAKER_02: You might want to keep the case pending, keep the kids being able to qualify, so on and so forth.
15:12
SPEAKER_02: Um so for the most part, I don't represent Chinese investors at the I-526 stage.
15:17
SPEAKER_02: Certainly do at the A29 stage, however, where quotas don't matter.
15:22
SPEAKER_02: The government defends the awarding of their adjudication resources under something called the visa availability approach, which basically says, you know, if we have a Chinese investor come in with an EB5 petition, we're gonna put those on the back burner, they're gonna get their own processing times.
15:42
SPEAKER_02: And then the end the countries that are not retrogressed, which as of right now is the entire world, they should be given priority.
15:50
SPEAKER_02: The problem though is that if you look at you know processing times for the rest of the world, which should be getting priority, I'm at IIUSA's website right now, as of you know July 29th, right?
16:03
SPEAKER_02: Again, setting aside the fact that the program's lapsed, we're looking at 32 to 55.5 months, which you know it in context, that's it, my opinion is that's quite unreasonable.
16:15
SPEAKER_02: And something has gone seriously wrong with USCIS.
16:19
SPEAKER_02: That number as of July is not terribly different than it was in months prior when the regional center program was around.
16:27
SPEAKER_01: So if you get what you want when you're representing these clients uh and and your arguments are upheld in court, then does your client effectively get to skip ahead in line uh ahead of the other applicants that don't have the great fortune of being represented by the Galati law firm?
16:47
SPEAKER_01: Christian, you sound like the government here.
16:50
SPEAKER_02: You must be reading degrees.
16:54
SPEAKER_02: Um okay, issue number one.
16:56
SPEAKER_02: I take I I I take issue with the idea that there is a line.
16:59
SPEAKER_02: I think that EB5 processing has largely been arbitrary.
17:03
SPEAKER_02: And you can kind of tell that just by looking at the processing times that I just mentioned.
17:07
SPEAKER_02: You know, if if certain cases are decided in 32 months and other cases are decided in 55 and a half months, how is that a line, right?
17:17
SPEAKER_02: That's almost twice as long that some people have to wait.
17:19
SPEAKER_02: And we're not even talking about the Chinese right now.
17:21
SPEAKER_02: We're talking about the rest of the world, investors from India, Nigeria, Canada, wherever, right?
17:26
SPEAKER_02: Now you brought up one of the government's big defenses in these lawsuits, which is a court shouldn't take action because you're giving benefits to the investors that are ambitious enough to sue at the expense of the investors that don't sue, right?
17:40
SPEAKER_02: And they cite this case called MASH P, which involved the designation of an Indian tribe in order to get benefits under the federal laws, right?
17:51
SPEAKER_02: And in that case, you know, one of the arguments was look, we decide these on a purely sequential basis.
17:57
SPEAKER_02: These are very um in-depth kinds of analyses, and you know, we only work on one case at a time, which is totally not true for immigration, right?
18:09
SPEAKER_02: There are thousands of adjudicators across multiple visa types, and there's nothing stopping USCIS from approving two I-526s in a day, or 20 I-526s in a day, or 200 I-526s in a day, right?
18:25
SPEAKER_02: So the idea that you're necessarily jumping in line, I think that's unfounded in this context.
18:31
SPEAKER_02: The other thing too is that if you take that to its logical conclusion, then the agency can be completely capricious on how they decide these.
19:04
SPEAKER_02: And you also have courts, and and courts are designed to check the other two branches and make sure that what they're doing is in accordance with the law.
19:12
SPEAKER_00: Well, let's look at the facts of where adjudications were and the processing times before the Trump administration took office and where it was trending uh until he got his minions in positions of control that then uh led to the incredible slowdowns.
19:29
SPEAKER_00: Suzanne Lizetti published uh an article very well researched in the fall of 2019 or 2018.
19:39
SPEAKER_00: I have to look go back and look, where she projected that uh uh processing times were going down so quickly that within a year it takes only 12 months.
19:48
SPEAKER_00: That's how much progress had been made.
19:51
SPEAKER_02: A new IPO chief came into power uh who I think is is Sarah Kendall still in in the she is not, they've had an acting director named Todd Young the first several months.
20:03
SPEAKER_00: Well, Sarah did her her thing, and uh what led to a reversal in that progress, a reversal in all the productivity enhancements that had occurred in prior years.
20:16
SPEAKER_00: And so the argument has no real uh uh merit.
20:20
SPEAKER_00: In fact, just as you look at the the trend line, you can't invest more, ask for more money, get more productive and own a dime, really tied to a change in administration and a change in the IPO chair, uh go the other way and then claim that that what that people are skipping in line?
20:36
SPEAKER_00: No, that that doesn't ask much.
20:38
SPEAKER_02: Yeah, I have I have some of these statistics pulled up uh from her blog.
20:41
SPEAKER_02: So, Susanna, if you're listening to this, thank you.
20:44
SPEAKER_02: Um but uh quarter three 2018, which is April to June 2018, before the last lapse, right, when everything was still operating normally, uh 4,442 initial petitions I-526s were processed.
20:59
SPEAKER_02: And then if you look at quarter four 2019, right, which is way, you know, a year later, way after the lapse, when they should have been completely back up the speed, you have 546, right?
21:11
SPEAKER_02: So I don't do math, I'm a lawyer, right?
21:14
SPEAKER_02: So about nine times fewer uh petitions.
21:18
SPEAKER_02: And and there has to be an explanation.
21:21
SPEAKER_00: Has the government ever been pressed on that question?
21:23
SPEAKER_00: I mean, those are facts.
21:24
SPEAKER_00: You can't you can't run away from the facts in terms of what your office has done or not done.
21:30
SPEAKER_00: When you press them on those numbers, what is the explanation?
21:33
SPEAKER_02: So this kind of brings up kind of like the anatomy of a suit and and what happens.
21:38
SPEAKER_02: So after you file suit, the government almost reflexively files if they're gonna defend it, right?
21:44
SPEAKER_02: Because there's plenty of times you can file a suit and then the approval notice arrives in the mail and you're done, right?
21:49
SPEAKER_02: If the government is going to defend it, they'll file something called a motion to dismiss, right?
21:54
SPEAKER_02: And under that motion to dismiss, they're arguing that you failed to state a Claim that a judge can grant you relief.
22:02
SPEAKER_02: And in those arguments, boil down to their essence.
22:06
SPEAKER_02: The government is mostly arguing, line skipping, like Christian mentioned, but also that simply you, plaintiff, investor, haven't waited long enough.
22:16
SPEAKER_02: Right?
22:17
SPEAKER_02: And they use the processing times as a defense.
22:21
SPEAKER_02: Now judges are people, and some of them will adopt the government's defenses wholesale.
22:29
SPEAKER_02: That's happened to me.
22:30
SPEAKER_02: Other judges say, well, wait a minute, let's look at let's look at the complaint that that was brought here.
22:36
SPEAKER_02: And they're showing statistics that show this massive drop in in adjudication.
22:43
SPEAKER_02: And there should be some context to that.
22:46
SPEAKER_02: And so the cases where we've been victorious, the judges said, government, I'm gonna deny your motion to dismiss.
22:53
SPEAKER_02: I'm gonna allow the lawsuit to move forward.
22:56
SPEAKER_02: Now, when that happens, generally you're allowed something called discovery in US litigation.
23:04
SPEAKER_02: And in the discovery process, you're allowed to get documents from the government, you're allowed to ask them questions of a sort called interrogatories, where they have to put this into context.
23:14
SPEAKER_02: Now, the majority of the time, certainly not every time, but in the majority of the time, once the government loses the motion to dismiss and they're facing discovery, they'll back down and settle the cases.
23:28
SPEAKER_02: So this happened uh in one of the one of the most significant victories for my clients was a case called Gutta earlier this year, where we defeated a motion to dismiss, and we were able to negotiate a settlement in which everybody got their cases adjudicated before June 30th, which in hindsight was great because that's you know when uh when the regional center program shut down and has yet to return.
23:53
unknown: Okay.
23:54
SPEAKER_01: So let me ask you this, and I know I know a lot of your clients ask you this uh same question.
24:01
SPEAKER_01: Um, so if you're waiting for adjudication of your EB5 application, and you then sue the very government that you're you're applying to, and you're suing to force their hand to adjudicate, is there any chance that the government will retaliate in some way, either by denying your application or delaying it further or anything like that?
24:25
SPEAKER_02: Um there's always a chance, right?
24:28
SPEAKER_02: So I'm not gonna speak in absolutes, but I'll I'll tell you that I've experienced absolutely no evidence of that whatsoever.
24:37
SPEAKER_02: Um and not just me, but every other litigator in the immigration bar that I've asked this question to or been on a panel with has said the same thing.
24:48
SPEAKER_02: And that includes litigators that formerly worked for the Department of Justice in defending these suits, saying that you know the thought of that never crossed our minds.
24:57
SPEAKER_02: So I have yet to see any evidence whatsoever of a denial of a case, and certainly we've had some after filing mandama suits, but I've yet to see one that wasn't meritorious.
25:10
SPEAKER_02: Either there was an issue with the source of funds or there was an issue with the project.
25:15
SPEAKER_02: And so sometimes when we're counseling, you know, investors on whether or not to do a lawsuit, uh, we'll bring up the possibility that it could speed along a denial and whether or not they're comfortable with that.
25:28
SPEAKER_02: For some investors, you know, they want closure.
25:30
SPEAKER_02: For some investors, they might be able to get refunds if their cases are denied.
25:34
SPEAKER_02: And so they might be able to, they might, you know, mentally just want a decision as soon as possible, even if it's bad.
25:42
SPEAKER_02: Um, I have yet to see any evidence that actually filing the lawsuit changes its ultimate outcome.
25:48
SPEAKER_02: So it just speeds it along.
25:51
SPEAKER_02: Certainly, we've got uh something called requests for evidence, where the government comes back for evidence that is not included in the file.
25:59
SPEAKER_02: When it's become abundantly clear that they've lost the file, that significant portions of the project documents were missing, even though the attorney did, in fact, file those.
26:09
SPEAKER_02: Part of that might be due to the pandemic and an adjudicators taking cases home and their dogs eat the files or whatever happens.
26:16
SPEAKER_02: Right.
26:17
SPEAKER_02: But um, I I'm a firm believer, and everyone is that I again that I've talked to that filing the mandamus does not lead to retaliatory denials.
26:27
SPEAKER_02: There's just no.
26:38
SPEAKER_00: Is that what they all do they always cave, or have you ever had a case where they actually was discovering the government opened up the books and allowed people to peer through this very obtuse adjudication process that's wrapped in mystery and an enigma and a riddle?
26:52
SPEAKER_00: But have you ever been able to have the government say, okay, here's the the documents that you are uh are requesting, where they always at that point they they bail.
27:03
SPEAKER_02: Yeah, it's it's funny that you mentioned that because we're we're actually dealing with this today in my firm.
27:08
SPEAKER_02: Uh we we did file a recent lawsuit.
27:11
SPEAKER_02: I'm gonna be very careful with what I say here because this is ongoing, right?
27:15
SPEAKER_02: But we did file a suit alleging a delay for a green card, an I-485, um, as well as the work and travel documents.
27:24
SPEAKER_02: And we prevailed, notwithstanding the lapse on the motion to dismiss.
27:28
SPEAKER_02: And so going out right now.
27:31
SPEAKER_02: Um, there may, in fact, be a fight over the scope of discovery and what the government turns over to us.
27:36
SPEAKER_02: Um so I think, you know, obviously this is an evolving process.
27:43
SPEAKER_02: We learn from our wins and losses, so does the Department of Justice, right?
27:48
SPEAKER_02: And litigation is sometimes playing poker and seeing who's who's bluffing and who's not, right?
27:53
SPEAKER_02: So certainly there have been cases that have progressed through discovery.
27:57
SPEAKER_02: Certainly there have been cases that have progressed to something called a motion for summary judgment.
28:03
SPEAKER_02: These kind of cases generally don't have the sexy trials that you see in in TV or in criminal law or things like that.
28:12
SPEAKER_02: Um, they're a lot more boring from the outside looking in.
28:16
SPEAKER_02: But uh for the most part, I would say discovery is quite rare.
28:19
SPEAKER_02: Maybe increasing, but quite rare.
28:22
SPEAKER_01: So, about the retaliation uh question that that your clients ask you, because you told me that that this is you know the number one question that you get uh from your clients when they're considering whether or not to sue.
28:36
SPEAKER_01: Um, do you think that that question comes up because a lot of the applicants to the EB5 program come from countries where retaliation from the government is common uh and almost to be expected, and that that you know that's a lot different in the United States.
28:58
SPEAKER_01: It's it's less personal a suit in the United States.
29:02
SPEAKER_01: Do you think that's part of the reason why this question comes up a lot?
29:05
SPEAKER_02: Oh, absolutely, right?
29:07
SPEAKER_02: I mean, you know, a lot of people immigrate to the United States from ill liberal regimes and they're getting out for their own safety, right?
29:15
SPEAKER_02: And so the idea that you would speak out against the government or take a public action against the government is very foreign to that.
29:22
SPEAKER_02: And culturally, clients that come from more liberal regimes, uh such as Europe or Canada, for example, are a lot more amenable to looking at lawsuits as a solution than clients that come from countries which which uh do not value the judicial process, let's just call it that.
29:40
SPEAKER_02: And so um there is a bit of a mental hurdle there for some for some clients.
29:45
SPEAKER_02: Um certainly if we were seeing retaliation left and right, um, more people would not be doing this.
29:51
SPEAKER_02: But again, there just hasn't been evidence of that in the United States.
29:55
SPEAKER_01: Now, when when you bring these suits, you tend not to sue, say, the USCIS or the uh the uh investor program office as as bureaus, as institutions.
30:08
SPEAKER_01: You sue specific individuals within those organizations.
30:14
SPEAKER_01: You so not as private individuals, but as individuals operating in a professional capacity.
30:20
SPEAKER_01: Why why is it that you don't sue the institution, but the, for example, the head of that institution personally?
30:28
SPEAKER_02: You can.
30:29
SPEAKER_02: I mean, there's no reason why you can't sue the institution itself, at least under the Administrative Procedure Act, right?
30:35
SPEAKER_02: If you're suing under the Mandamus Act, which is a different statute, you generally need to name an individual specifically, argue that they have a non-discretionary duty, and that their personal, although they're in their official capacity, their personal failure to act is what's fueling the lawsuit, right?
30:52
SPEAKER_02: It's just a matter of litigation strategy.
30:55
SPEAKER_02: Um, another part of litigation strategy is determining what court to sue in.
31:00
SPEAKER_02: So a lot of our victories have come from the Ninth Circuit, which stretches from Alaska to Arizona, a couple inland states.
31:07
SPEAKER_02: Obviously, California is part of that.
31:09
SPEAKER_01: And so sometimes you might if I'm sorry, if I if I remember correctly, uh that uh the Ninth Circuit has sort of a uh reputation for being uh pro-immigration or uh friendlier toward immigration.
31:24
SPEAKER_01: Isn't that the case?
31:25
SPEAKER_01: I just remember Trump being very angry at the Ninth Circuit uh a number of years ago.
31:30
SPEAKER_01: Maybe I'm mistaken.
31:32
SPEAKER_01: Let me know.
31:33
SPEAKER_02: No, I I I agree with you.
31:34
SPEAKER_02: There certainly is that perception.
31:36
SPEAKER_02: Every judge is different.
31:37
SPEAKER_02: Judges are people.
31:39
SPEAKER_02: And we see a lot of this evidence when you file a lawsuit in Washington, D.C.
31:42
SPEAKER_02: You can use the same strategies, two different judges, and get radically different outcomes.
31:47
SPEAKER_02: So in Washington right now, I think it's a my personal feelings are that bringing a suit there would be a little bit more of a gamble than if you can try to bring a suit in the Ninth Circuit.
31:56
SPEAKER_02: I would agree with your perception, historically speaking.
31:59
SPEAKER_01: Do you think that is because the Ninth Circuit covers kind of the blue states uh of the West Coast?
32:05
SPEAKER_01: Uh does that have anything to do with it?
32:07
SPEAKER_02: It could.
32:08
SPEAKER_02: Um, historically speaking, when a president is appointing a judge to the federal bench, the executive branch will reach out to the senators of the states um for suggestions or perhaps even you know whether or not they're gonna put a hold on on those judges.
32:26
SPEAKER_02: And so our West Coast tends than than the heartland, that's for sure.
32:32
SPEAKER_02: Um the Ninth Circuit does you know encompass states that that are more conservative, though.
32:40
SPEAKER_02: And so a lot just depends on what court you're dealing with and what judge you're dealing with, so on and so forth.
32:46
SPEAKER_01: Right.
32:47
SPEAKER_01: Okay, I want to move a little bit uh to to talk about EB5 more broadly, uh, not just uh litigation, but uh I I just think uh I think you agree with me that EB5 has kind of been a big mess for the last two years.
33:02
SPEAKER_02: I mean we had uh in the last 10 years, really.
33:07
SPEAKER_01: Yeah, in the last n years, but in particular uh since November 2019 when the modernization rule uh was introduced.
33:15
SPEAKER_01: And that so that raised the so correct me if I go astray here.
33:19
SPEAKER_01: I'm gonna um I'm gonna take a stab at uh like a brief summary of what's happened.
33:25
SPEAKER_01: So the modernization rule raised the minimum investment requirements uh from 500,000 uh 1 million to 900,000 1.8.
33:37
SPEAKER_01: Um but but then that was invalidated by the Bering lawsuit, where they charged that the the head of the what was it USIS?
33:48
SPEAKER_02: Uh Department of Homeland Security.
33:50
SPEAKER_01: Department of Homeland Security had so not that he had exceeded his official authority, but that he shouldn't have been in that position to begin with.
34:00
SPEAKER_01: And so the modernization rule which he authorized was invalidated for for that uh uh as a consequence of the outcome of that lawsuit.
34:11
SPEAKER_01: Um and that did go to court, as far as I know.
34:13
SPEAKER_01: Um and so then the regional center program failed to get reauthorization earlier this year, leaving only the direct EB5 Avenue.
34:24
SPEAKER_02: Yeah, you you're referring to one extremely hectic week in late June of this year.
34:30
SPEAKER_02: Uh I think Bering came out on June 22nd.
34:34
SPEAKER_02: The vote in the Senate on the Grassley Leahy bill failed, I want to say June 24th, and then you know, midnight July 1st, at the end of June 30th, the regional center program was gone.
34:46
SPEAKER_01: Right.
34:46
SPEAKER_01: And so but then after that, the Bering ruling was appealed at the last minute.
34:53
SPEAKER_01: Right.
34:55
SPEAKER_01: And that if that's overturned, that previous ruling, then we could see the modernization rule take effect again, right?
35:04
SPEAKER_01: But in parallel, we may see new legislation on EB5 before that, which would make the Bering case irrelevant.
35:14
SPEAKER_01: So my point is there are lots of moving parts in terms of regulation, legislation, lobbying efforts, lawsuits, countersuits, appeals, and so on.
35:24
SPEAKER_01: Uh to me, it's it's it's one, you know, it's a bit Washington is a big Gordian nut.
35:30
SPEAKER_01: And uh, I'm wondering if you can kind of give us a quick summary of how we ended up with this EB5 morass, and then point out what what dates and events that we should be keeping our eyes on in the next few months to get an idea of what may be in the cards for EB5 and and when we could expect some changes.
35:50
SPEAKER_02: Yeah.
35:51
SPEAKER_02: Um honestly, uh when I'm dealing with counseling clients on EB5 as opposed to you know extraordinary ability visa or intercompany transfer E visa, something like that, I honestly say I don't know, and nobody knows uh quite often.
36:06
SPEAKER_02: It is quite difficult to provide advice because things are so changing.
36:10
SPEAKER_02: And let me preface my comments with, you know, obviously we're recording this on one day, uh, but even by the time that this episode comes out, we could be dealing with a different EB5 system.
36:23
SPEAKER_02: It's moving that quickly, right?
36:25
SPEAKER_02: Yes.
36:25
SPEAKER_02: Uh so understand that.
36:26
SPEAKER_02: Okay.
36:27
SPEAKER_02: So um EB5 for the most part was relatively stable and unchanged until 2015.
36:34
SPEAKER_02: In 2015, uh two senators, uh Chuck Grassley from Iowa and Patrick Leahy from Vermont, uh, the former a Republican, the latter a Democrat, had proposed legislation that would greatly change the terms and conditions of the program.
36:51
SPEAKER_01: And for whatever reasons, their legislation Sorry, sorry, before you go on, um, what was it uh that they had proposed specifically that would greatly change the program?
37:01
SPEAKER_02: They changed they had proposed raising the minimum investment amount statutorily.
37:06
SPEAKER_02: They had proposed changing whether or not you could do EBI, the regional center context solely on indirect job creation or whether or not you need a direct job creation.
37:18
SPEAKER_02: And they changed what qualifies for a targeted employment area below our investment amounts, all of that statutorily, right?
37:26
SPEAKER_02: And they have been foiled every single time to the present in getting that legislation passed, um, either through will or objections from other senators or whatever the case may be.
37:40
SPEAKER_02: And every single time the regional center program has come up for reauthorization, we've had like these mini crunches or mini rushes where everyone's been saying, hey, let's get our application in now so that we can lock in under the current law and don't have to worry about what Congress is going to do.
37:56
SPEAKER_02: And that has basically been, you know, rinse and repeat every couple of months from 2015 till this past June.
38:04
SPEAKER_02: Okay.
38:05
SPEAKER_02: The way that the law is written now, it allows the agency, USCIS Department of Homeland Security, to make certain changes by regulation, which do not require Congress to act.
38:19
SPEAKER_02: And two of the most significant ones were changing what qualifies as a targeted employment area and changing the minimum investment amounts.
38:28
SPEAKER_02: Okay.
38:29
SPEAKER_02: For generally speaking, an agency can only act where Congress has either expressly delegated authority to them, like they did in EB5, or where a statute is ambiguous.
38:41
SPEAKER_02: We call that the Chevron Doctrine.
38:43
SPEAKER_02: That's a discussion for a whole other day.
38:45
SPEAKER_02: Right.
38:45
SPEAKER_02: Okay.
38:46
SPEAKER_02: So beginning of 2017, the Obama administration in its final days puts out the initial proposal, the notice of proposed rulemaking, for what would become the November 20th, 2019 EB5 modernization rule, right?
39:06
SPEAKER_02: And that, of course, was you know starting and stopping.
39:10
SPEAKER_02: There was public comments, went back and forth.
39:13
SPEAKER_02: Industry insiders were saying Trump killed the pro the rule and then he brought it back.
39:18
SPEAKER_02: And again, very, very hectic.
39:20
SPEAKER_02: Until July 2019, we actually got the final rule in its final form.
39:26
SPEAKER_02: And it went into effect uh, like I said, November 20th, 2019.
39:30
SPEAKER_02: So essentially your last day to file was November 19th.
39:34
SPEAKER_02: Or I might have the dates off by a day or two there.
39:37
SPEAKER_02: Um that created a massive um uh a massive demand in the market because why would I pay nine hundred thousand dollars for a green card, uh make the investment and and deal with the risk inherent in VB5 if I could do that for$500,000?
39:57
SPEAKER_02: So, you know, summer and fall 2019 were extremely busy times, right?
40:04
SPEAKER_02: Um, the Trump administration had enormous problems getting their political appointees confirmed by the United States Senate.
40:13
SPEAKER_02: Obviously, that was true when the Democrats ran it, but it was also true to an extent when the Republicans were in power in the Senate too, right?
40:19
SPEAKER_02: And so um the to the extent that Democrats had any power uh during the Trump administration.
40:26
SPEAKER_02: But um Chad Wolfe, who was the acting director of the Department of Homeland Security, was the individual that eventually put the EB5 modernization regulations into law.
40:39
SPEAKER_02: Lawsuits sprung up all across the country in non-EB5 contexts, most, you know, asylum, uh fee raises, so on and so forth.
40:48
SPEAKER_02: And the administration was pretty uniformly losing by arguing that Mr.
40:54
SPEAKER_02: Wolfe was not in the correct position because he was never confirmed by the Senate, and that statutory confirmation exceptions were not applicable.
41:05
SPEAKER_02: So the attorneys uh in the Bering suit, represented by Greenberg Trarig, full disclosure, my former employer, uh individuals over there, I think are absolutely brilliant, not just in litigation, but also EB5.
41:17
SPEAKER_02: Um, they brought the Bering Suit in a jurisdiction that was relatively friendly, Ninth Circuit, Northern District, California, alleging a litany of reasons why the rule was invalid, but also alleging that Mr.
41:30
SPEAKER_02: Wolf, uh, as well as the heads of USCIS, Mr.
41:32
SPEAKER_02: Cucinelli, Ken Cuccinelli, that they were not properly in their positions.
41:37
SPEAKER_02: And uh Judge Corley from that court agreed.
41:39
SPEAKER_02: And so she invalidated that rule again, June 22nd, I believe, of this year, basically causing a reversion back to the way that the law was on November 17th, 2019.
41:53
SPEAKER_02: So that's where we are now.
41:55
SPEAKER_02: Now, the government on their last possible day, they had 60 days, they noted the appeal in that case, and that is scheduled for briefing in December and into January, at least last time I had checked PACER.
42:07
SPEAKER_02: And we'll just see how the Ninth Circuit Court of Appeals deals with that case.
42:10
SPEAKER_02: You are right in indicating that Congress could act, especially once it revives the regional center program, to moot a lot of the issues that were in that faulty regulation.
42:22
SPEAKER_02: So if Congress says, okay, understanding everything that's happened in EB5, putting all this in context, we're going to move the minimum investment amounts in the statute from 500,000 and a million to pick any other number, um, then I think most legal experts and probably the court would agree that that moves the regulation because the regulation would have been promulgated based on an obsolete statute.
42:50
SPEAKER_02: So given that Grassy Leahy failed in June, there's an enormous opportunity here for Congress to take action, truly modernize the EB5 program, get us some minimum investment amounts that make sense in context with competing nations around the world, as well as you know, sufficient, you know, reform the program so that processing times are more predictable, so that adjudications are more predictable, so the TEA designations are more predictable, and hopefully revive the program to its former glory, so to speak.
43:24
SPEAKER_01: So you say if if Congress takes action, now as far as I remember with the EB5 program, they've been they've been tied to omnibus omnibus bills, continuing resolutions, and you know, must pass legislation.
43:38
SPEAKER_01: And then what Grassley and Leahy were trying to do with their unanimous consent uh request on the Senate floor was to was to have a standalone uh bill for EB five.
43:51
SPEAKER_01: Is that correct?
43:52
SPEAKER_01: Yes, but that's the hotlining process.
43:55
SPEAKER_02: So the hotlining process.
43:57
SPEAKER_02: I'm not the Senate parliamentarian, right?
43:59
SPEAKER_02: Uh but Generally speaking, you can skip quote unquote regular order if you have every single senator in unison agreeing to do so.
44:10
SPEAKER_02: And we've seen that in the immigration context in several occasions.
44:15
SPEAKER_02: In this particular context, one senator in particular voiced his objection, and so that legislation failed, and the program lapsed midnight, July 1st.
44:25
SPEAKER_01: Now, in terms of influencing senators to enact legislation, in terms of lobbyism, there are two principal groups that do this, as far as I understand, in the United States.
44:38
SPEAKER_01: There's IISA, invest in the United States of America, and there's the EB5 Investors Coalition.
44:49
SPEAKER_01: They have not seen eye to eye on a variety of issues.
44:54
SPEAKER_01: And I'm wondering if you can kind of give a broad outline of what the what are the what is that disagreement about?
45:03
SPEAKER_01: Why are they what are the different things that they want to make happen in Congress?
45:09
SPEAKER_02: I'm going to be extremely careful with what I say here because I don't speak on behalf of either organization, right?
45:16
SPEAKER_02: And so a lot of this is just me as an observer, and a lot of this information is secondhand.
45:22
SPEAKER_02: It has been enormously difficult since 2015 to get industry uh unity on what the EB5 program should look like.
45:34
SPEAKER_02: Rural interests have had some difficulties in recruiting investors for a project in small town Iowa, right?
45:46
SPEAKER_02: Competing against regional centers that might put a project on Wall Street.
45:50
SPEAKER_02: And with both of those being at the same investment amounts, 500,000 historically, given liberal TEA designation rules, um people have thought that that was unfair.
46:03
SPEAKER_02: And that by allowing states to designate TEAs, some states have abused that and really gutted what it means to be a targeted employment area.
46:12
SPEAKER_02: I'm not here to have that debate today.
46:15
SPEAKER_02: Um there has been a perception, whether or not it's true, is for your listeners and the members of those organizations to um to debate amongst themselves.
46:27
SPEAKER_02: But there has been a perception that IISA has been a little more aligned towards the rural interests and the EB5 Investment Coalition has been more aligned towards urban interests.
46:38
SPEAKER_02: I'm not saying that's true, I'm just saying the perception out there.
46:42
SPEAKER_02: Certainly we see that in Chuck Grassley's floor speeches, right?
46:45
SPEAKER_02: So it's a matter of congressional record that that perception is out there.
46:50
SPEAKER_02: Um I have heard this is secondhand, so I'm extremely involved with the American Immigration Lawyers Association, but I'm not involved with either of those, um, either of those groups.
47:02
SPEAKER_02: Um I've heard in discussing with individuals in those groups that we may actually now finally have industry what the EB5 program should look like, and that hopefully it's just a matter of bringing EB5 as an attachment to some must-pass legislation.
47:21
SPEAKER_02: You were right.
47:22
SPEAKER_02: Um, EB5 is a relatively small program.
47:25
SPEAKER_02: We only let 10,000 investors and their family members in a year, you know, our green card lottery, let's in five times that I don't know, 50,000, at least on Goodyears, right?
47:34
SPEAKER_02: And you know, the amount of money that raised in EB5 is just a drop in the bucket compared to the overall operations of the United States government and certainly our economy as a whole.
47:45
SPEAKER_02: And so um frankly, it just doesn't get a lot of attention because unlike myself, Rogelio and his former life, you know, it isn't as all consuming as it is for 99.99999% of the population.
48:02
SPEAKER_02: So, you know, trying to pass legislation either through regular order when you've got so many other competing immigration uh interests, such as legalizing individuals that are in the United States or curing DACA or modernizing our employment-based visa system, it's very difficult to give EB5 its own special attention, especially when those consumers of the program tend to skew much more wealthy, right?
48:32
SPEAKER_02: So putting this into some must-pass legislation as it has been since 2015, and omnibus bills or CRs or something like that, uh, has proven to be a good strategy in the past, and it's probably what will happen in the future.
48:47
SPEAKER_00: Well, that's the big question, though.
48:49
SPEAKER_00: The future.
48:50
SPEAKER_00: Uh I don't know if you polish your uh Notre Demon as all predicted.
48:55
SPEAKER_00: Uh but if it's not December 3rd or this next uh budget resolution, it's uh it's a cricket, no, it's uh it's dead.
49:06
SPEAKER_00: Uh I don't see it uh lasting, surviving a whole other 2020 uh two uh in this data limbo.
49:14
SPEAKER_00: The lawsuits will then just flood the system.
49:17
SPEAKER_00: And is maybe that the forcing mechanism, or or do we get something done this year as we should, as we should have, and move on into uh greener pastures?
49:26
SPEAKER_02: Yeah, um I I don't make too many political predictions anymore.
49:32
SPEAKER_02: I got both the 2016 and 2020 presidential elections wrong.
49:36
SPEAKER_02: So I'm the I'm not the best guy to ask, you know, about politics.
49:41
SPEAKER_02: I'm not Larry Sabado or anything like that.
49:43
SPEAKER_02: Um I agree with you that the best opportunities for this, um, at least to avoid severe harm to people that are in the system, are arising in the next couple weeks and months.
49:59
SPEAKER_02: Congress will need to, you know, the Biden agenda is largely resting on the ref reconciliation bills, the his big back build back better plan, excuse me.
50:09
SPEAKER_02: Um the debt limit for whatever reason, the United States government limits the amount of debt it can take on.
50:15
SPEAKER_02: That needs to be addressed by Congress.
50:17
SPEAKER_02: That must pass legislation.
50:19
SPEAKER_02: Could EB5 be part of that?
50:21
SPEAKER_02: Um, omnibus spending, as you mentioned in December, thousands and thousands and thousands of pages in that bill.
50:27
SPEAKER_02: Could we add a couple pages, you know, reviving EB5?
50:31
SPEAKER_02: All of that um remains to be seen.
50:36
SPEAKER_02: And I try to be optimistic and I'm I feel good about its chances this fall, but I could be wrong.
50:42
SPEAKER_02: If that doesn't work, and if we are looking at the program really being off the books, the regional center program, by the way, being off the books indefinitely, I think the most important thing that needs to happen is legislation needs to be passed to protect investors that relied on the program when it was in existence.
51:02
SPEAKER_02: So if I invested in 2018, and my case is still pending, which is you know a lot of people right now, um, and I've been through some of these congressional showdowns and survived at least until June, you know, it would seem to forever put a black eye on the United States, on its immigration system, if we were to simply start canceling all of those applications, denying them because there was no direct job creation.
51:27
SPEAKER_02: It would be very difficult to see how the United States ever comes back in the realm of investment migration.
51:35
SPEAKER_02: And I'm sure some of your viewers will recall, I'm certainly not an expert on Canadian immigration, but something similar happened with Canada's federal program several years ago.
51:46
SPEAKER_02: And part of EB5's success were investors that said, wow, Canada is way too unpredictable.
51:53
SPEAKER_02: I'm gonna look at EB5 instead, right?
51:55
SPEAKER_02: And I'd hate to see that happen to the American side.
51:59
SPEAKER_00: Why don't we talk a little bit about I mean it's pretty unique?
52:02
SPEAKER_00: Uh well, maybe we can or not, but uh an American experienced immigration attorney uh looking at the opportunity to help Americans with uh overseas uh mobility assets, Portugal, Grenada, and how you thought about that, and you know, what challenges you faced or successes and trends.
52:24
SPEAKER_00: That whole nature that's pretty unique.
52:25
SPEAKER_00: I've I've met a lot of attorneys with US backgrounds that saw the or or seed that opportunity helping there.
52:34
SPEAKER_02: Yeah.
52:35
SPEAKER_02: Um, you know, immigration to the United States is not the right solution for everyone, especially if you're American and you want to get out.
52:43
SPEAKER_02: I know you're operating in that space.
52:45
SPEAKER_02: Um, and you know, we've been kind of talking about all of the works on the EB5 program right now, and so many other programs don't have those problems, right?
52:57
SPEAKER_02: Um, I think you're gonna find some programs, the Portuguese Golden Visa being perhaps the prime example, not notwithstanding the issues with getting appointment with Seth right now, but or whatever they're calling the agency, but um, you know, that has been a lot more stable, right?
53:14
SPEAKER_02: And so if I'm an investor, you know, looking at immigrating to the West, let's say that I'm in Mumbai and I want to, you know, get permanent residency somewhere because I can't get dual citizenship, and I'm looking at European programs versus Canada versus the United States, I certainly should have an eye on the programs that have proven to be more stable.
53:42
SPEAKER_02: Um, I'm not holding myself out as an expert under you know, any jurisdiction where I'm not licensed, but we have been able to talk to Americans, talk to third country individuals that are looking for a Plan B.
53:58
SPEAKER_02: And um, at least in my experience, the Portuguese Golden Visa has been the most attractive given its relative uh liberal um methods for for immigrating into the country and its extremely liberal uh requirements for maintaining the golden visa itself.
54:20
SPEAKER_01: Yeah, I look I know that um I know that Rogelio, one of the reasons why why he pivoted to you know away from just doing inbound American EB5 to doing outbound American uh global mobility assets was what was happening in the EB5 program.
54:40
SPEAKER_01: Uh I mean that the extreme the extreme delays, retrogression, um uh the the the lack in adjudication, uh price increase.
54:50
SPEAKER_01: The price increase, which right?
54:54
SPEAKER_01: Yeah, so yeah, so are you considering just you put I'm just asking me personally now, not as an immigration lawyer to the United States, but is that something that that you think that yourself and other US immigration lawyers who have been historically focused on EB5, are they now kind of looking at okay, what else is out there and can I do it?
55:15
SPEAKER_01: Oh, for sure.
55:17
SPEAKER_02: Um even like within the EB5 realm itself, to be successful, I think that most attorneys have had to make pivots at certain points.
55:29
SPEAKER_02: Whether that be because the Chinese market dried up and you couldn't fly to China and come back with 100 clients.
55:36
SPEAKER_02: Um so then people had to start looking at Vietnam, people had to start looking at India, people had to start looking at the domestic market too.
55:44
SPEAKER_02: Um people have have pivoted.
55:48
SPEAKER_02: And when you're in the industry that we're in, you have a lot of important contacts, and those contacts have needs.
55:58
SPEAKER_02: They have needs for themselves, they have needs for their clients.
56:01
SPEAKER_02: So being able to diversify diversify your value add is um enormously important.
56:10
SPEAKER_02: Um, you know, one to keep the lights on in your business, and to um to also meet the demands of your clients.
56:17
SPEAKER_02: Like it, yeah, I I have one client right now, he did um he did EB5, and his source of funds was denied due to some complicated issues involving cryptocurrency, which uh is a discussion for another day.
56:34
SPEAKER_02: And so then you know, suddenly discussion was okay, let's let's look at plan B.
56:38
SPEAKER_02: Uh, why not Portugal?
56:39
SPEAKER_02: They're much more friendly to crypto, right?
56:41
SPEAKER_01: So yeah, yeah.
56:43
SPEAKER_01: One of the things that I told Roelio uh in the past, I mean, he heard me talk about this on a different podcast, actually, but I I said basically that look, the the the mega the mega trend now, after the pandemic, during the pandemic, after the pandemic, the mega trend is Americans have discovered investment migration, right?
57:03
SPEAKER_01: And that is turning the whole market upside down uh because it's just you know a preponderance of high net worth individuals globally are Americans, right?
57:13
SPEAKER_01: At least the plurality of them are Americans.
57:16
SPEAKER_01: I think it's 26 million people uh who have a net worth of more than a million, something like that.
57:23
SPEAKER_01: Um and obviously when when they open their eyes to investment migration, that's a huge market.
57:28
SPEAKER_01: Now, I think that because of the complexity of EB5, because of the legal uh structure of the United States, because of the high standards, because of the highly regulated nature of immigration law in the United States, and also because EB5 was basically a finance type of program.
57:50
SPEAKER_01: It's not, you know, any any any Tom Dick and Harry in Dubai can sell uh you know a Caribbean CIP.
57:58
SPEAKER_01: It's very simple.
57:59
SPEAKER_01: Whereas EB5, you know, you have to evaluate um these projects uh from a financial perspective and all that.
58:06
SPEAKER_02: And so I think that's and the source of funds is incredibly more complicated with EB5 than most countries.
58:13
SPEAKER_01: Right, right.
58:14
SPEAKER_01: And so because you have all this expertise, uh so as a result of that complexity, you've developed in the United States a huge pool of highly experienced, highly skilled, highly paid uh professionals who can who do have the potential to kind of blow the blow out of the water the competition of you know the relatively simpler um service providers or providers of relatively simpler programs in places like Dubai, for example.
58:48
SPEAKER_01: And so are American immigration, so previous EB5 people, are they kind of moving en masse now to um serve clients in the other direction?
59:00
SPEAKER_02: I wouldn't say en masse, but uh certainly, and I think we see this more lawyers.
59:06
SPEAKER_02: Uh certainly lots of the regional centers are making uh strategic partnerships with service providers abroad um and with entities abroad that uh can facilitate migration to other countries.
59:20
SPEAKER_02: Maybe their Portuguese funds, for example, right?
59:23
SPEAKER_02: So XYZ Regional Center is able to offer you know investment in the ABC funded Portugal so that you can get their golden visa, for example.
59:31
SPEAKER_02: We've seen quite a bit of that.
59:33
SPEAKER_02: Uh we saw this when the Chinese retrogression happened.
59:36
SPEAKER_02: A lot of people were pushing the Grenadian program and then later the Turkish program because those are E2 countries.
59:41
SPEAKER_02: And so a Chinese person wouldn't, I mean, they still have to wait a long time for a green card, but they wouldn't necessarily have to wait a long time to enter the United States and establish their lives there, right?
59:52
SPEAKER_02: Right.
59:53
SPEAKER_02: The other thing too is that American lawyers, immigration lawyers, have been doing outbound migration for decades.
1:00:01
SPEAKER_02: The idea that this is new is I mean, at least in EB5 it might be new, but for example, if I represent a large corporate entity and I'm doing their American immigration, I'm doing H1B visas, I'm doing L visas, I'm doing whatever, and they trust me, they value me, and suddenly it's okay, well, Matt, can you help us move uh can you help us move Juan from Mexico to our office in London?
1:00:32
SPEAKER_02: I understand you're not a British lawyer, but we need you to oversee that process.
1:00:37
SPEAKER_02: Uh the American lawyer can step in, they can find local partners on the ground, they can vet those attorneys, they can do all of all basically everything other than file the case if they're not licensed there for the most part.
1:00:49
SPEAKER_02: And that's been going on for decades, um, the outbow migration.
1:00:53
SPEAKER_02: And so that's that's an interesting like who you know kind of thing.
1:00:57
SPEAKER_02: It's almost like, you know, in investment migration, we talk about agents you know, largely operating in Asia.
1:01:02
SPEAKER_02: It's almost kind of like turning that on its head.
1:01:05
SPEAKER_02: And, you know, as an American entity or as an American professional, being able to link you know, consumers uh with businesses in the foreign countries and being able to streamline the process.
1:01:17
SPEAKER_02: Um, I think it's an arms value.
1:01:19
SPEAKER_00: I mean, I I don't see uh if this progresses the EB5 standstill on the regional center side and there is no resolution to it this year, what are regional centers going to do, and what is the whole ecosystem around it, uh including attorneys, going to do other?
1:01:35
SPEAKER_00: There is no pivoting, well, maybe it's direct EB5, which is it's only a very valid.
1:01:40
SPEAKER_02: Right?
1:01:41
SPEAKER_00: Uh severely has its limits, uh it doesn't scale as quickly, but it is 500,000, it's law, and uh ostensibly the adjudication processing times for these will uh uh will be faster.
1:01:56
SPEAKER_00: I mean, what else is the IPO going to do now, right?
1:02:00
SPEAKER_00: We'll see.
1:02:00
SPEAKER_02: But I mean look, I and I ran a great article.
1:02:03
SPEAKER_02: Why aren't A29 processing times coming down, right?
1:02:06
SPEAKER_02: All of those adjudicators at the immigrant investor program office, they're not doing Regional Center 526s.
1:02:12
SPEAKER_02: What are they doing all day?
1:02:14
SPEAKER_01: That's it for today, folks.
1:02:16
SPEAKER_01: But we'll be back soon with another episode of the Mobility Standard.
1:02:20
SPEAKER_01: In the meantime, I encourage you, the listener, to send us the questions you have about investment migration.
1:02:26
SPEAKER_01: If we're able to answer them, we'll do so during our next episode.
1:02:30
SPEAKER_01: I want to remind you to follow our work on imidail.com, the world's number one publication for investment migration, home to the internet's greatest collection of investment migration data, real estate, expert opinion, and the intelligence you need to be a successful investment migration professional.
1:02:48
SPEAKER_01: Thank you for listening.