Beltway Buzz, February 28, 2025
The Beltway Buzz™ is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C., could impact your business.
House Budget Resolution: No Tax on Tips? Nope. This week, the U.S. House of Representatives passed a budget resolution, a critical step in Republican lawmakers’ plan to use the budgetary reconciliation process to score legislative wins on taxes, the border, defense spending, and energy production. But this is just a first step in what is expected to be an arduous legislative process: both the U.S. Senate and House must agree on the same budget resolution before the individual legislative committees in each chamber can begin drafting legislation as instructed by such a resolution. Accordingly, despite some internet rumors to the contrary, the House-passed budget resolution does not—by itself—eliminate taxes on overtime pay or tipped wages.
Regulatory EO Asserts More Control Over Independent Agencies. On February 18, 2025, President Trump issued an executive order (EO), entitled, “Ensuring Accountability for all Agencies.” The EO strengthens President Trump’s authority over the executive branch—particularly over independent agencies such as the National Labor Relations Board (NLRB), U.S. Equal Opportunity Commission (EEOC), and Federal Trade Commission—by ordering the following:
Independent agencies will be required to submit proposed and final rules to the White House’s Office of Information and Regulatory Affairs (OIRA) for review. (Some agencies, such as the EEOC, already submit their rules for review by OIRA.)
The director of the Office of Management and Budget (OMB) will set “performance standards and management objectives for independent agency heads” and the director will also be required to “report periodically to the President on their performance and efficiency in attaining such standards and objectives.”
The OMB director is required to consult with agency chairs about their spending to prohibit them “from expending appropriations on particular activities, functions, projects, or objects, so long as such restrictions are consistent with law.”
The heads of agencies must “regularly consult with and coordinate policies and priorities” with the White House and submit strategic plans to OMB for approval.
A White House Liaison will be established within each independent agency.
Executive branch agencies—including independent agencies—are prohibited from advancing any policy “that contravenes the President or the Attorney General’s opinion on a matter of law.”
Along with the terminations of EEOC and NLRB members, the EO is an effort to align the policy objectives of independent agencies with those of the White House.
DOL Nominee News. This week, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted to approve Lori Chavez-DeRemer’s nomination to be secretary of labor by a vote of 14–9. Senator Rand Paul (R-KY) voted “no,” while Democratic Senators Maggie Hassan (NH), John Hickenlooper (CO), and Tim Kaine (VA) voted in favor of the nomination. Chavez-DeRemer’s nomination is now teed up for a vote on the Senate floor. The bipartisan nature of the committee vote indicates that Chavez-DeRemer has a good chance of being confirmed.
Additionally, the HELP Committee held a hearing to examine the nomination of Keith Sonderling to be deputy secretary of labor. The committee will vote on Sonderling’s nomination on March 6, 2025.
FTC to Begin “Labor Markets Task Force.” According to media reports, Federal Trade Commission (FTC) Chair Andrew Ferguson announced at a recent event that the FTC will initiate a “labor markets task force.” The task force will reportedly focus on noncompete agreements, as well as no-hire and no-poach contracts. In June 2024, Ferguson voted against the FTC’s non-compete rule while writing, “Whatever the Final Rule’s wisdom as a matter of public policy, it is unlawful. Congress has not authorized us to issue it. The Constitution forbids it. And it violates the basic requirements of the Administrative Procedure Act.” The Buzz will be monitoring this situation as it develops.
DHS to Require Registration, Fingerprinting. U.S. Citizenship and Immigration Services (USCIS) announced that it is resuscitating a provision of the Immigration Nationality Act that will require all individuals “14 years of age or older who were not fingerprinted or registered when applying for a U.S. visa and who remain in the United States for 30 days or longer” to apply for registration and fingerprinting. After doing so, proof of this registration must be carried at all times by such individuals who are over the age of eighteen. The requirement dates back to World War II, but an eventual lack of an operable implementation procedure resulted in the abandonment of the policy. Individuals who will not have to register under this policy include, but are not limited to, lawful permanent residents, individuals with work permits, and visa holders with an arrival/departure record (Form I-94). Individuals who will have to register include the undocumented, previously registered children who turn fourteen, those present in the United States pursuant to programs such as Deferred Action for Childhood Arrivals or Temporary Protected Status who do not have work permits, and Canadians who arrive via land ports of entry. According to the announcement, the U.S. Department of Homeland Security (DHS) “will soon announce a form and process for aliens to complete the registration requirement.”
Capital Murder? Previously, we’ve discussed the caning of Charles Sumner, as well as the 1798 brawl between representatives from Vermont and Connecticut over an accusation of stolen valor. And then there was the deadly duel in 1838 between Representatives William Graves of Kentucky and Jonathan Cilley of Maine that stemmed from criticism of President Martin Van Buren. Well, today marks the anniversary of another unfortunate instance of violence perpetrated within the halls of the U.S. Congress.
William Preston Taulbee was a Democratic representative from Kentucky who served in Congress from 1885 to 1889. During his time in Congress, Taulbee had a difficult relationship with a Kentucky journalist named Charles Kincaid, who wrote frequently—and critically—about Taulbee’s political service. The breaking point came in late 1887, when Kincaid wrote a story about Taulbee engaging in an extramarital affair. This story sank Taulbee’s political career, as he did not seek another term. However, Taulbee became a lobbyist and, therefore, remained a frequent visitor in Congress. On February 28, 1890, a meeting between the two men became physical, causing Kincaid to retrieve his pistol, which he used later that day to shoot Taulbee when he confronted him on a staircase in the Capitol Building. Taulbee died eleven days later. The slight Kincaid—described as “a little pint-of-cider fellow”—later claimed self-defense and was acquitted of Taulbee’s murder. Amazingly, Kincaid’s attorney was sitting U.S. Senator Daniel W. Voorhees of Indiana, who, like Taulbee, was a Democrat.
Plans to Replace EB-5 Immigrant Investor Program
President Donald Trump has announced that he plans to offer the “Trump Gold Card” to replace the existing EB-5 Immigrant Investor Program. The Trump Gold Card Program would allow an investor who is willing to invest $5 million in the U.S. economy to obtain permanent residency.
The current EB-5 Immigrant Investor Program requires an investor to invest at least $800,000 in a company that will employ a minimum of 10 people.
The Trump Gold Card investor would be required to prove that the funds were obtained legally, pass a background check, and satisfy additional screening criteria. This program may be capped at 1 million gold cards.
Programs such as the Trump Gold Card Program aim to attract foreign capital and boost economic growth.
USCIS to Establish Alien Registration Form and Process for Undocumented Immigrants
USCIS has announced that it is establishing a new form and process by which undocumented immigrants may register pursuant to section 262 of the Immigration and Nationality Act (INA) (8 U.S.C. § 1302) and a Jan. 20, 2025, executive order.
President Donald Trump’s “Protecting the American People Against Invasion” executive order instructed the Department of Homeland Security (DHS) to ensure that foreign nationals comply with their registration obligations under INA § 262. It also emphasized that non-compliance should be treated as a priority for both civil and criminal enforcement.
In general, the INA mandates that any foreign national aged 14 or older must apply for registration and fingerprinting if they have been in the United States for at least 30 days and did not do so when applying for a U.S. visa. For children under 14, it is their parent or guardian’s responsibility to ensure they are registered. When a child turns 14, they are required to reregister and have their fingerprints taken within 30 days of their birthday. After a foreign national has registered and undergone fingerprinting, the DHS will provide proof of registration. Aliens over the age of 18 are required to carry this proof at all times.
Most foreign nationals in the United States have already registered as required by law. However, many foreign nationals in the country have not had a direct way to register and fulfill their obligation under INA § 262. Once the USCIS registration process is in place, foreign nationals will submit their registration through their USCIS online account. Parents and guardians will also use their USCIS online account to submit registration applications for children under 14.
Those who may not have received evidence of registration and provided fingerprints include:
Foreign nationals who entered the United States without inspection, admission, and/or parole;
Canadian citizens who entered the United States through land ports of entry and did not receive evidence of registration; and
Foreign nationals who applied for DACA or TPS and were not given evidence of registration.
Department of State Updates Interview Waiver Policy to Restrict the Categories of Qualifying Non-Immigrant Visa Applicants
Effective February 18, 2025, the Department of State has changed the categories of applicants that are eligible to waive the in-person non-immigrant visa interview appointment when applying for a non-immigrant visa stamp for travel to the United States. More applicants must now attend an in-person interview appointment.
Under the prior policy, U.S. Consulates were permitted to waive the in-person visa interview requirement for non-immigrant visa applicants that were previously issued any non-immigrant visa, provided the applicant was applying for a new non-immigrant visa within 48 months of the expiration date of the applicant’s previously issued non-immigrant visa. (However, this policy did not apply if the only visa ever issued to the applicant was a B visa).
The new policy gives U.S. Consulates authority to waive in-person non-immigrant visa interviews only for the following categories of visa applicants:
Applicants who previously held a visa in the same visa category, and this visa expired less than 12 months before the date of the new visa application;
Applicants for A-1, A-2, C-3 (except attendants, servants, or personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1 through NATO-6, or TECRO E-1 visas;
Applicants for diplomatic- or official-type visas.
Applicants are eligible for an interview waiver only if they also:
Apply for a non-immigrant visa at a U.S. Consulate in the applicant’s country of nationality or residence;
Have never been refused a visa, unless such refusal was overcome or waived; and
Have no apparent or potential ineligibility.
As with the prior policy, the authority to waive an in-person non-immigrant visa interview is discretionary, and consular officers may still require in-person non-immigrant visa interviews for applicants who otherwise qualify for such a waiver.
This new policy presents unwelcome news and longer wait times for many visa applicants. The prior policy allowed waivers for applicants who were previously issued any type of visa (unless the previously issued visa was a B visa) and made available interview waivers to applicants whose previously held non-immigrant visa expired within the past 48 months.
Non-immigrant visa applicants should expect longer wait times when applying for non-immigrant visas at U.S. Consulates abroad and may experience a cancellation of an already existing drop-box appointment if the applicant does not meet the new policy’s interview waiver criteria. Employers and non-immigrant workers inside the United States should consider this new policy and plan accordingly if non-immigrant visa processing is required following any international travel, especially during the summer travel season.
For more information on these interview waiver policies, please visit the Department of State’s webpage at https://travel.state.gov/content/travel/en/News/visas-news/interview-waiver-update-feb-18-2025.html .
Why President Trump Can’t Just Re-Write the Rules: The EB-5 Program’s Congressional Lock
The EB-5 Immigrant Investor Program, created in 1990 under the Immigration Act, provides a pathway for foreign nationals to obtain U.S. residency through investments in American businesses that generate jobs. Yesterday, President Donald Trump proposed a new immigration initiative, introducing a “gold card” visa that would grant wealthy foreign nationals U.S. residency and a pathway to citizenship in exchange for a $5 million investment. This proposal aims to replace the existing EB-5 Immigrant Investor Program. While this program is subject to scrutiny, it is important to clarify why the president cannot unilaterally modify or terminate it without legislative action from Congress or replace it with other immigrant investment models.
Congressional Authority Over Immigration Law
The U.S. Constitution grants Congress the power to regulate immigration laws, including programs like EB-5 (see Article I, Section 8 of the Constitution), and the Supreme Court has consistently reaffirmed this power (see, e.g., Fiallo v. Bell, 1977). The Immigration and Nationality Act (INA) governs these policies, which includes the structure of visa categories, eligibility criteria, and investment requirements under the EB-5 program. As such, any fundamental changes to the program would require an amendment to the INA, which only Congress can enact. The president’s role in immigration policy, while significant in areas of enforcement and policy interpretation, does not extend to altering or terminating visa programs established by Congress. In 2022, Congress reauthorized EB-5 through 2027 under the EB-5 Reform and Integrity Act (RIA), meaning any attempt to dismantle the program would require new legislation — not an executive order.
Limits on Executive Power
While the president oversees immigration agencies such as U.S. Citizenship and Immigration Services (USCIS), executive authority is confined to administering and enforcing laws as they are written. The president may direct how immigration laws are implemented or prioritize certain enforcement strategies but cannot create new laws or eliminate existing ones. This separation of powers ensures that changes to programs like EB-5 cannot occur at the whim of a single branch of government.
For example, any alterations to investment thresholds, visa allocations, or job creation requirements under the EB-5 Program must be passed through the legislative process, which involves both chambers of Congress. Even if the president disapproves of the program, without Congress enacting legislation to terminate or reform it, the program will remain intact. Moreover, any new visa program, such as the proposed “gold card,” would generally require congressional approval to become law.
Executive Orders vs. Legislative Power
Executive orders and policy memos can shape the way the EB-5 Program is executed, such as altering processing priorities or tightening enforcement measures, but they cannot fundamentally alter or dissolve the program itself. Any attempt by the president to terminate EB-5 without congressional involvement would likely face legal challenges, as it would be considered an overreach of executive power.
Potential Legal Challenges
When faced with challenges to unilateral executive actions regarding immigration policy, courts have historically upheld the principle that significant changes to immigration policy require legislative action. Trump has faced significant legal challenges to his executive orders on immigration, with courts frequently ruling that his actions overstep the authority granted to the executive branch.
Refugee Admissions Suspension – In January 2025, Trump issued an executive order suspending the U.S. refugee resettlement program. This action was challenged by refugee aid organizations, leading to a federal judge in Seattle issuing a preliminary injunction. The judge determined that the executive order likely violated the Refugee Act of 1980, the Administrative Procedure Act, and the Fifth Amendment’s due process clause, emphasizing that the president’s authority has limits and cannot override laws passed by Congress.
Birthright Citizenship – In January 2025, Trump signed an executive order attempting to end birthright citizenship for children born in the U.S. to unauthorized immigrants and certain legal immigrants. This order faced immediate legal challenges, with multiple federal judges issuing preliminary injunctions blocking its enforcement. The courts ruled that the executive order was likely unconstitutional, as it sought to eliminate a fundamental right protected by the 14th Amendment, which grants citizenship to all persons born or naturalized in the United States.
Asylum and Immigration Enforcement – Trump’s executive orders aimed at curbing asylum claims and enhancing immigration enforcement have also encountered legal obstacles. For instance, an executive order suspending the entry of undocumented migrants under any circumstances, citing an “invasion,” has been challenged in court. Critics argue that such actions violate U.S. treaty obligations related to the protection of refugees and overstep the president’s constitutional authority.
These legal challenges underscore the ongoing tension between executive actions and judicial oversight in the realm of immigration policy. The courts have consistently emphasized the need for executive actions to align with constitutional principles and legislative intent, reinforcing the system of checks and balances inherent in the U.S. government. While the president controls immigration enforcement, he cannot override a federal statute. Any executive action targeting EB-5 would likely face immediate legal challenges, as courts have blocked similar overreaches in the past (see also DHS v. Regents of the University of California, 2020).
Prospective EB-5 Investors
For prospective EB-5 projects and investors, it is an excellent time to apply through the EB-5 Program, and many benefits remain in place. Under the Department of State’s upcoming “Visa Bulletin,” all nationalities, including Indian- and Chinese-born nationals, remain current through certain expedited regional center projects and can therefore still take advantage of quick processing times and fast green card issuance.
Conclusion
The EB-5 Program is part of the broader immigration framework established by Congress. While the president can influence the administration of the program, any effort to modify or terminate it requires the action of Congress. The legislative process ensures that significant changes to immigration programs, such as EB-5, are subject to debate and oversight, preserving the balance of powers as outlined by the U.S. Constitution. While the president can propose new immigration policies, the creation of a new visa program like the “gold card” would require congressional approval to ensure its legality and alignment with existing immigration laws. Without such legislative action, the president cannot unilaterally enact the proposed “gold card” visa program.
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Mission India Announces Updated Requirements for Dropbox/ Interview Waiver Appointments
The U.S. Mission to India continues to be an incredibly popular initiative. In 2024, it issues more than one million nonimmigrant visas for the second year in a row, as Indian citizens increasingly look to travel to the U.S. for tourism, business, and education.
However, Mission India has quietly updated some of its applicant requirements moving forward.
Applicants no longer will be able to apply using the dropbox/interview waiver process unless their prior visas are still valid or have expired within the last 12 months. Previously, applicants whose visas had expired 48 months prior who met certain criteria were eligible for dropbox appointments.
Please note that there was no official announcement, but Mission India recently updated the criteria on its website. Click here for more information.
With a much lower numbers of applicants meeting dropbox criteria, the consulates in India are going to see a large increase in applications requiring the applicants be called for interviews. Therefore, applicants are going to see a large increase in the number of days it will take to secure a visa appointment.
Employers should note that foreign national employees may seek to take leave more often or for a longer period or may ask the business to assist with making expedited requests for earlier appointments due to changes in visa processing. They also may be more anxious overall regarding the new criteria due to the above referenced executive orders.
Summary of 2025 Immigration-Related Executive Orders
The Trump administration has issued a number of executive orders since taking office that impact immigration. While these do not directly target employers or address business immigration, they nevertheless may impact employers and their workforce.
Click here to continue reading.
Employers Must Update I-9 Forms of Employees with Work Authorization Documents Based on Haitian TPS
On Feb. 20, 2025, DHS Secretary Kristi Noem announced that Haiti’s Temporary Protected Status (TPS) designation will terminate on Aug. 3, 2025.
Work authorization documents based on Haitian TPS are now auto-extended only to Aug. 3, 2025, rather than Feb. 3, 2026.
On Feb. 24, 2025, the E-Verify program announced that I-9 forms for employees with an Employment Authorization Document (EAD) listing a Category Code of A12 or C19 (the codes for Haitian TPS) and an expiration date of Feb. 3, 2026, must be corrected to reflect an amended expiration date of Aug. 3, 2025.
Employers are instructed to enter the amended expiration date of Aug. 3, 2025, in the Additional Information field in Section 2 of the I-9 form and initial and date the correction.
Importantly, employers are not instructed to create new E-Verify cases for existing employees with work authorization documents based upon Haitian TPS that expire Feb. 3, 2026.
All employees with EADs listing the A12 or C19 Category Code with a Feb. 3, 2026, expiration must be re-verified using an alternative, acceptable I-9 document before they begin work on Aug. 4, 2025. A list of acceptable documents is available at Form I-9 Acceptable Documents | USCIS.
DHS Secretary Noem Deputizes State Department Officials as Immigration Officers
Department of Homeland Security (DHS) Secretary Kristi Noem signed a memorandum deputizing up to 600 special agents within the State Department’s Diplomatic Security Service across the country to help with arresting and deporting illegal immigrants, DHS announced Feb. 20, 2025.
The memorandum authorized special agents within the State Department’s Diplomatic Security Service to perform the functions of an immigration officer, including investigating, determining the location of, and apprehending any alien who is in the United States in violation of Title 8, Chapter 12 or regulations issued thereunder and enforcing any requirements of such statutes or regulations.
DHS has also deputized Internal Revenue Service employees and Department of Justice employees to help with immigration enforcement actions. These deputations give law enforcement additional resources to contribute to President Donald Trump’s campaign promise of carrying out mass deportations.
Federal Court Issues Partial Preliminary Injunction Halting Enforcement of DEI-Related EOs
On February 21, 2025, the U.S. District Court for the District of Maryland issued a preliminary injunction pausing enforcement of several provisions of President Trump’s DEI-related executive orders on Ending Radical and Wasteful Government DEI Programs and Preferencing (“EO 14151”) and Ending Illegal Discrimination and Restoring Merit-Based Opportunity (“EO 14173”).
Notably, the ruling prevents the federal government from enforcing a clause of EO 14173 which would have required federal contractors and grantees to certify both that they: (i) do not operate “illegal” DEI programs; and (ii) are in material compliance with federal anti-discrimination laws – provisions which would have raised potential False Claims Act (“FCA”) liability for covered entities.
Background
Plaintiffs, the National Association of Diversity Officers in Higher Education, American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore (collectively, “Plaintiffs”), are federal contractors and grantees that fund DEI-related research, offer professional development services to individuals from underrepresented backgrounds, and conduct other “DEI-related activities.” On February 3, 2025, Plaintiffs brought suit against President Trump, Attorney General Pam Bondi, and various federal agencies and agency heads, claiming the following provisions of EOs 14151 and 14173 pose an imminent threat of harm to members of Plaintiffs’ organizations and violate the First Amendment, Fifth Amendment, and constitutional separation of powers principles:
“Termination Provision” (EO 14151 § 2(b)(i)), which orders each “agency, department, or commission head” to “terminate, to the maximum extent allowed by law, all ‘equity-related’ grants or contracts”;
“Certification Provision” (EO 14173 § 3(b)(iv)), which orders each agency to include certifications in every contract or grant award that the contractor or grantee does not operate illegal DEI programs and that compliance with federal anti-discrimination laws is “material to the government’s payment decisions for purposes of” the FCA; and
“Enforcement Threat Provision: (EO 14173 § 4(b)(iii)), which orders the Attorney General to submit recommendations and a strategic plan for enforcement actions to challenge illegal DEI in the private sector.
Plaintiffs moved for a declaratory judgment that the EOs are unlawful, as well as a temporary restraining order and/or preliminary injunction barring the federal government from enforcing the EOs.
Court’s Opinion and Reasoning
District Judge Adam B. Abelson issued a nationwide injunction partially enjoining the EOs, finding Plaintiffs had shown a likelihood of success on the merits of their First and Fifth Amendment challenges. The court concluded that the irreparable harms Plaintiffs faced, including “widespread chilling of unquestionably protected speech,” outweigh the government’s interest in “immediately imposing a new, not-yet-promulgated interpretation of what it considers ‘eradicating discrimination.’” The court declined to consider Plaintiffs’ separation of powers arguments because it found that Plaintiffs had already made a sufficient showing under their First Amendment claims to grant the preliminary injunction.
First, the court found that Plaintiffs were likely to succeed on their claim that the Certification Provision of EO 14173 violates the First Amendment. Given the potential threat of FCA liability and that the EO covers all contractor activity – not just actions related to federally sourced funds – the certification “constitutes a content-based restriction on the speech rights of federal contractors and grantees.” Moreover, the court found that the EO targets speech in support of DEI without imposing “a similar restriction on anti-DEI principles that may also be in violation of existing federal anti-discrimination laws.” The court explained that “[b]ecause even the government does not know what constitutes DEI-related speech that violates federal anti-discrimination laws,” federal contractors and grantees are “highly likely to . . . self-censor” in order to be compliant with the Certification Provision.
Second, the Court found that Plaintiffs would likely succeed on their claim that the term “‘equity-related’ grants or contracts” in the Termination Provision is unconstitutionally vague under the Fifth Amendment because: (i) it is a broad, undefined term that is likely to result in arbitrary and discriminatory enforcement between and within federal agencies; and (ii) the term does not provide contractors and grant recipients with notice of “what, if anything, they can do to bring their grants into compliance such that they are not considered ‘equity-related.’”
However, the court declined to pause the portion of the Enforcement Threat Provision that directs the Attorney General to create an enforcement plan and engage in investigations “to deter DEI programs or principles . . . that constitute illegal discrimination or preferences,” which is “merely a directive from the President to the Attorney General,” and does not implicate separation-of-powers principles.
As a result of this ruling, federal agencies: (i) may not enforce the Certification Provision while the injunction is in effect; (ii) must pause efforts to identify organizations for civil compliance evaluations; and (iii) must halt contract rescissions and contract modifications under the EOs. But any provision of EOs 14151 and 14173 not expressly enjoined by the ruling remains in effect – including the requirement for the Attorney General to develop a plan to deter illegal DEI efforts, which the Justice Department has indicated may involve potential criminal investigations.
Importantly, the decision does not foreclose private litigation challenging the use of DEI programs, including cases brought by prospective employee plaintiffs, attorneys general and organizations that have already taken the lead in pursuing such actions since the Supreme Court’s June 2023 ruling in Students for Fair Admissions v. Harvard.
Exception to Refugee Ban: Addressing Egregious Actions of South Africa
President Donald Trump issued Executive Order (EO) 14204, “Addressing Egregious Actions of the Republic of South Africa,” on Feb. 7, 2025, creating an exception to the refugee ban, driven by concerns over South Africa’s racially discriminatory property confiscation practices.
EO 14204 follows the enactment of South Africa’s Expropriation Act 13 of 2024, enabling the government to seize agricultural property owned by ethnic minority Afrikaners without compensation.
Key Provisions
Suspension of Aid and Assistance: The EO mandates that the United States shall not provide aid or assistance to South Africa as long as the country continues its “unjust and immoral practices.” This includes halting foreign aid and assistance delivered by all executive departments and agencies.
Promotion of Afrikaner Refugee Resettlement: The EO emphasizes the resettlement of Afrikaner refugees who are victims of government-sponsored race-based discrimination. The Department of State (DOS) and the Department of Homeland Security (DHS) are directed to prioritize humanitarian relief, including admission and resettlement through the United States Refugee Admissions Program (USRAP).
Humanitarian Considerations: The EO directs the DOS and DHS to take appropriate steps to prioritize humanitarian relief for Afrikaners in South Africa who are victims of unjust racial discrimination. This includes submitting a plan to the president through the assistant to the president and Homeland Security advisor.
By suspending aid and promoting the resettlement of Afrikaner refugees, the EO aims to address deemed human rights violations, representing the U.S. government’s stance against perceived discriminatory practices in South Africa. The suspension of processing refugee applications under the USRAP, except on a case-by-case basis, outlined in EO 14163, “Realigning the United States Refugee Admissions Program” as well as the suspension of other humanitarian programs, indeed adds a layer of complexity to the situation.
Potential Impact of the Executive Orders on EB-5 Investors
The Trump administration issued several executive orders (EOs) in the first week following the inauguration. Many of the EOs for immigration focus on enhancing security measures relating to foreign nationals, including scrutiny of nonimmigrant and immigrant visa applications and enhanced background checks for foreign nationals. At present, no EOs specifically relate to the EB-5 Immigrant Investor Program, but the enhanced scrutiny the newly issued EOs require may impact EB-5 investors.
EB-5 investors may experience increased scrutiny during Form I-526 or Form I-526E petition adjudication. A critical part of the EB-5 petition process is documenting the lawful funding source the investor used to make the qualifying EB-5 investment. The USCIS Immigrant Investor Program Office may conduct additional background checks on all individuals involved in the funding source, including the investor, his or her spouse, any gift or, and/or any individual or non-bank organization that provides a loan to the investor.
Moreover, EB-5 investors may experience enhanced background checks for EB-5 immigrant visas at U.S. embassies and consulates worldwide. The EO “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” tasks government agencies with reviewing all visa programs to prevent hostile state and nonstate actors from entering the United States. This EO likely will result in enhanced background checks of EB-5 investors applying for immigrant visas abroad or for adjustment of status in the United States. Investors born in or who are citizens of countries with a totalitarian or Communist Party-controlled government likely will receive increased scrutiny to determine if they have meaningful membership in the Communist Party. Both USCIS and foreign consular officers likely will also closely examine investors’ memberships in associations or other organizations.
An additional EO, “Guaranteeing the States Protection Against Invasion,” imposes vetting requirements on immigrants to the United States. This EO might result in enhanced medical and security requirements. The EO “Protecting the American People Against Invasion” may also result in a more stringent application of the “public charge” ground of inadmissibility. EB-5 investors are subject to the “public charge” ground of inadmissibility, and they must prove to the USCIS or the consular officer’s satisfaction that they are able to support themselves in the United States and are not likely to take public benefits after being granted permanent residence. USCIS or the State Department may require applicants to submit evidence to prove they would not be a public charge. The administration may expand the list of federal public benefits that can be considered in making a public charge determination. In the I-829 petition adjudication process, USCIS may request evidence on federal public benefits applicants receive.
The administration’s EOs do not change the EB-5 Program, which Congress extended through Sept. 30, 2027. The EOs generally do not change the EB-5 Program’s rules or eligibility requirements, and applicants from all nations can apply. USCIS and the State Department may implement additional background checks on EB-5 investors at the I-526 or I-526E petition stage, the immigrant visa stage, the adjustment of status stage, and the I-829 petition stage.