Immigration Article of the Day: Capital Migration by Shayak Sarkar

Capital Migration by Shayak Sarkar, University of California, Davis – School of Law

Abstract

Money moves, while migrants languish. If humans face borders, capital and corporations are purportedly “borderless.” Yet the question of what renders capital and entities “foreign” remains prickly, especially as their migration challenges and reshapes American law.

This Article first unpacks foreign capital’s migration. It specifically parses capital and corporate migration’s intersection with, and similarities to, human migration. For example, the citizenship binary is insufficient to understand the “foreign” in both human and capital migration, as international tax law illustrates. Additionally, just as immigration tax federalism permits nonuniformity, so does capital and corporate tax federalism under the (Foreign) Commerce Clause and after the Supreme Court’s recent decision in National Pork Producers Council v. Ross.

Beyond theoretical parallels, this Article refutes the separation of capital migration and human migration by examining where they m eet: human migration regimes that attract capital. “Capital-purchase migration” in universal or treaty investor visas allows foreign capital to pave our streets and then the contributor’s path to permanent residency. “Capital-facilitating migration” permits the temporary workers necessary for an investment to flourish.

Third and finally, a fear of the foreign motivates some laws governing capital and human migration. For capital, that fear lies not only in the much-discussed Committee on Foreign Investment in the United States but also in our everyday lives and communities. As this Article explains, capital migration includes the aesthetic “intrusion” of newcomers’ residential investments and the controversial commercial investments catering to these newcomers. Communities, including longer-settled but fellow migrants, police this foreign capital and the people behind it using municipal codes. As such, this Article reorients our understanding of capital migration as inte rwoven with human migration, for better or for worse. While this connection counsels local tax flexibility, I caution against fear-based barriers to capital migration.

KJ