immigrant investor program: Proposed solutions to particular problems, The

Law and Policy in International Business, Winter 2000 by MacDonald, Beth

I. INTRODUCTION

In 1990, the traditional immigration policy aims of uniting families and providing asylum for the tired, poor, and weary masses gave way to the realization of economic goals. The Immigration and Naturalization Act1 tripled the number of employment-related visas2 and created the immigrant investor category.3 The immigrant investor program4 allows a qualified investor to obtain a visa if he or she commits $1 million, or $500,000 in targeted areas. The money must be committed to a new enterprise in which the investor is actively involved, and the investment must create ten jobs for U.S. workers.5 The investor first receives conditional permanent resident status for two years, and then the Immigration and Naturalization Service (INS) reviews the enterprise to confirm that jobs have been created and the statutory requirements satisfied.6

When passing the Immigrant Investor Program, lawmakers were motivated not only by the realization that foreign investment is necessary to the U.S. economy, but also by competition from other countries in attracting foreign capital.7

Foreign investment affects the U.S. economy in several ways: it increases production capacity, enhances industry growth and competition, raises tax revenue, creates jobs, assists in the financing of the deficit, and introduces new ideas to U.S. businesses. Foreign investment increases the nation's productive capacity by adding assets to the existing capital stock,8 which enables businesses to grow and modernize.9 Foreign investors' contributions of assets have significantly enhanced the United States' ability to compete in worldwide industry.10 Investment from abroad not only aids in business growth and competitiveness, but also generates large amounts of tax revenue in the form of income, sales, excise, property, and other taxes.11 The more obvious benefits of foreign investment are the millions of U.S. workers employed and the billions of dollars in goods exported into world markets.12 Perhaps the least recognized benefits are the introduction of new production techniques and new management strategies.13 In addition, it is argued that foreign investment has stabilized the U.S. economy and has helped finance the trade deficit, allowing U.S. residents to enjoy a higher standard of living without the expected increase in taxes.14

As Congress recognized in its formulation of different required investment amounts, immigrant entrepreneurs appear to have a special role in economic recovery.15 Self employment among immigrants has grown significantly over the last decade and plays a large role in rejuvenating urban neighborhood economies.ls These immigrant entrepreneurs and their families maintain ties to their homelands that significantly increase export opportunities.17 In addition, the social cohesion inherent in immigrant communities transfers to economic relationships as immigrant firms begin to integrate and become interdependent, allowing the firms to compete globally.18

The second motivation for the passage of the Immigrant Investor Provision was the desire to compete with similar programs offered by Canada and Australia. The concept of economic citizenship-granting citizenship or residency status to foreigners who have capital to invest to create jobs in the host country-became the new strategy to attract foreign investment during the 1990s.19 Immigrant investor programs are expected to facilitate investment flows into the host country and to maintain the capital in the country by offering citizenship to the investors.20 Both developing and developed countries have begun to use this strategy to attract foreign investment21 and have focused their efforts on the millionaires fleeing Hong Kong and other parts of Asia.22

The passage of the investor category in the United States was heralded with lofty promises of millions of dollars of capital infusion and the creation of tens of thousands of jobs. However, these ideals have never realized their full potential, and the category has actually caused much more trouble than could have been foreseen. In discussing causes of the problems that have emerged since the creation of the category, all of the players involved in the . controversy point their fingers at each other.

This Note identifies the problems that have arisen since the inception of the category and proposes solutions to those problems. Part II describes the statutory framework of the category, reviews the legislative history surrounding its passage, and then points out the weaknesses of the category. Part III describes the regulations written by the INS and identifies problems arising from the regulations and their operation. Part IV summarizes the INS reaction to the problems and analyzes the effectiveness of this reaction. Part V reviews the formal administrative decisions regarding the problems and analyzes the efficacy of these decisions. Part VI proposes solutions to the problems addressed, identifies concerns involved in formulating solutions, and evaluates the possible options.