Last week, USCIS announced the first EB-5 Immigrant Investor Program teleconference of 2016, scheduled to take place on Wednesday, Feb. 3, from 1 to 2:30 p.m. (ET). USCIS promises EB-5 program updates to be followed by a question-and-answer session. This is the first stakeholder call since the EB-5 Regional Center Program was schedule to sunset on Sept. 30 and Dec. 11, 2015.

We look forward to continuing discussions with USCIS and hope that they will address these five issues during the call:

  1. What Can We Expect Regarding Processing Times? The “The American Job Creation and Investment Promotion Reform Act” S. 1501 (a.k.a. the Leahy-Grassley Bill and) introduced in early Summer 2015 sought to radically overhaul the program, yet nodded to potential grandfathering of I-526 petitions and I-924 exemplar filings. As we all know, this development and the temporary extension of the program from Sept. 30 to Dec. 11 that followed set off a surge in filings close to the anticipated deadlines. The most recent published processing times (Oct. 31, 2015) peg I-526 adjudication at 12.8 months and I-924 adjudication at 7.8 months. Does this forecast take into consideration the Sept. 30 surge in filings? What was the impact of the filings in advance of the Dec. 11 deadline? What can we expect with regard to 2016 processing times?
  2. How is USCIS Addressing Increased Volume on Adjudicators? The logical follow-up to #1 is what steps are being taken, if any, to address this surge in demand? Will the IPO be bringing on additional staff? Considering the many thousands of filings and that each I-526 filing costs $1,500 and each I-924 filing costs $6,230. USCIS’s bank accounts have thus also been surging. Will this translate to new hires or improvements in organizational infrastructure to address increased demand?
  3. What about I-829s? As we have argued previously, USCIS’ timely adjudication of Form I-829 has and continues to be woefully inadequate. The applicable regulation provides that USCIS “must either waive the requirement for an interview and adjudicate the [I-829] petition or arrange for an interview within 90 days of the date on which the petition was properly filed.” USCIS’ pattern and practice is to not issue an interview absent indications of fraud or inadmissibility/removability. Thus, investors are entitled to receive decisions (or at least Requests for Evidence) within three months of filing.

Yet, USCIS’ latest published processing times violate the statute in such that it takes 15.8 months adjudicate. Does USCIS recognize this problem? If so, what is being done to correct it?

  1. Will USCIS Issue Guidance Regarding Sunset Prior to Sept. 30, 2016? In 2009, under different USCIS and EB-5 leadership, the agency issued a memorandum regarding how regional center cases would be addressed should the program lapse. This was also promised in September 2015, yet it was not delivered. Has USCIS developed any updated guidance over the past 7 years on how cases will be handled? If so, will they share that with stakeholders, and when?
  2. What Role, If Any, Is USCIS Playing in Crafting EB-5 Legislative Proposals? An open question remains as to whether IPO officers are in touch with members of Congress in proposing reforms.

Consider S. 1501.  The Bill includes very detailed and technical language involving source of funds. Such language is far more technical compared to most of the current EB-5 provisions and the INA more generally –  rising to a level more akin to the regulations. It specifically nods to the indebtedness issues that created a tumult last spring and seeks to codify USCIS’ position on the regulations as written, as well as to prohibit a more recent trend involving investors pledging  collateral to non-banking institutions and obtaining loans.

Given that staffers are relatively disengaged from the day-to-day EB-5 issues and probably do not have a fluent understanding of Chinese Source of Funds issues, could this proposal have come from USCIS? If so, what role is it playing in crafting potential legislative reforms?