On September 9, 2014, USCIS held a stakeholder conference call for individuals interested in the EB-5 Program with John Lion, Julia Harrison and Nicolas Colucci. This was the first stakeholder conference call for the new deputy director of EB-5, Julia Harrison, who has had a long career with USCIS.

Mr. Colucci gave a run-down of recent developments with the Immigrant Investor Program Office (IIPO) in his opening remarks. The IIPO currently has 83 employees and expects to hire another 10-12 in October. The IIPO goal is to hire approximately 110 employees by the end of the calendar year 2014. USCIS is also working on an interagency symposium with the Federal Bureau of Investigations, Immigration and Customs Enforcement, Federal banking regulators, and the Departments of Commerce and Labor to increase EB-5 Program awareness, share knowledge and solicit ideas from each other for regulatory changes. Mr. Colucci also discussed the anticipated creation of a new engagement tool known as “EB-5 Interactive,” which would increase engagement with stakeholders, provide filing tips and discuss commonly issued RFEs and how to avoid such RFEs. USCIS is also implementing the Office of Inspector General (OIG) recommendation to partner with the Department of Commerce to conduct a study on the economic impact of the EB-5 Program. Mr. Colucci anticipates that study to release its findings in the summer of 2015.

Mr. Colucci also discussed the current processing times for I-526 Petitions, I-829 Petitions and I-924 Petitions. I-526 Petitions are currently processing in approximately 13.4 months, I-829 Petitions are currently processing in approximately 7.6 months and I-924 Petitions are currently processing in approximately 7.1 months. This is consistent with Mr. Colucci’s expectations during the February 2014 stakeholder call which anticipated a slowdown in I-526 Petition processing times as the IIPO hired and trained new staff. Mr. Colucci anticipates this will slowly decrease over the next fiscal year as the IIPO reaches its staffing goals. Despite this increase in I-526 Petition processing times, USCIS has actually greatly increased its activity on I-526 Petitions. In July 2013, USCIS took 300 actions on I-526 Petitions. In July 2014, USCIS took 1,200 actions. Another factor affecting processing times is the increase in receipts of I-526 Petitions. In the first eight months of the calendar year 2014, USCIS received approximately 8,000 I-526 Petitions and 1,200 in July 2014 alone.

Mr. Colucci also provided important tips for I-924A filings. For background, every regional center must file a Form I-924A, Supplement to Form I-92A, between October 1 and December 29 of each calendar year which provides USCIS with certain information regarding the regional center’s activity during the government’s previous fiscal year. Mr. Colucci stated that USCIS issued Notices of Intent to Terminate (NOITT) to certain regional centers who did not file I-924As within the appropriate filing period. Additionally, Mr. Colucci stated regional centers who were inactive the prior year should submit a statement accompanying the I-924A stating the reasons why the regional center was inactive, how the regional center has previously fulfilled its purpose of promoting economic development and a description of any future plans to promote economic development within its designated geographic boundaries. This may indicate a renewed focus on the regional center reporting system and could include an eventual update to the I-924A form which would allow for greater transparency and statistical gathering by USCIS.

USCIS also briefly discussed retrogression, noting as we have said, USCIS will continue to process I-526 Petitions without any additional delay due to visa retrogression. Additionally, so long as the most recent visa bulletin reflects the EB-5 immigrant visa category as current, USCIS will continue to accept Form I-485, Adjustment of Status. However, USCIS will stop asking these if the State Department issues a visa bulletin which indicates the EB-5 immigrant visa category is not current for certain nationalities.

A few of the highlights from the question and answer session included:

  • ELIS System. Filings through the ELIS system do not take longer than regular paper filings.
  • Portfolio Investments. USCIS stated it was permissible for an NCE to invest in multiple projects in order to satisfy the job creation requirements for its investors. However, if each project construction timeline is less than 24 months, the various investments by the NCE may not aggregate the total project construction timelines of separate investments in order to count direct jobs in such investments. Furthermore, any portfolio investments cannot be “blind,” in that an I-526 Petition with respect to an NCE that seeks to make portfolio investments must identify such investments at that the I-526 Petition stage.
  • 24-Month Retrogression Period. USCIS stated it has no knowledge or expectation that a 24-month retrogression of the EB-5 immigrant visa category will occur. Any talk of the length of an EB-5 immigrant visa category is premature.
  • Non-Profit JCE. USCIS stated a JCE may be non-profit, but that an NCE must still be a for-profit commercial enterprise in accordance with the applicable EB-5 regulations.
  • Guarantee of an EB-5 Loan from a JCE to an NCE. USCIS stated there is nothing which prohibits a guarantee from a JCE to an NCE, and similar scenarios such as insurance already exist which function similar to a guarantee. Accordingly, guarantees which run between the JCE and the NCE are permissible. However, such guarantees may not run between the NCE and the investor or the JCE and the investor.
  • I-526 Petition Efficiencies. USCIS took in many suggestions regarding I-526 Petition efficiencies. Specifically, USCIS did state that as a general policy, it has tried to staff the same individuals on each NCE or regional center but that due to the volume of certain regional centers or NCEs, that may not always be the case.

Lastly, USCIS did state that certain escrow holdback provisions were permissible. USICS appeared to indicate funds were fungible once invested into the NCE. However, USCIS did not address the “at risk” issue or the issue that arises at the I-829 Petition stage with certain holdbacks. The I-829 Petition must demonstrate that an investor’s funds were deployed to the entity most closely responsible for job creation (i.e. the JCE). If the NCE is providing a loan to the JCE, the I-829 Petition must trace each investor’s funds as they are deposited into the NCE and deployed into the JCE pursuant to the relevant loan documents. If an investor’s funds are deposited into the NCE and then subsequently used to repay a denied investor, instead of being funded under the relevant loan documents, that investor would be unable to demonstrate at the I-829 Petition stage that his or her funds were made available to the business or businesses most closely responsible for creating the employment

Overall, the conference call was very productive and USCIS was very responsive to some of the questions and concerns held by EB-5 stakeholders. The 2015 fiscal year should be very interesting, as the EB-5 Program is up for reauthorization and retrogression may have a greater impact.