On Nov. 7, 2017, United States Citizenship and Immigration Services (USCIS) Immigrant Investor Program Office (IPO) held an EB-5 stakeholder program at their New York City field office. GT attorneys Kate Kalmykov and Kristen Ng attended the in-person session. During the engagement, key members of the IPO addressed: 1) updates from the IPO; 2) priorities for FY 2018; and 3) stakeholder questions from both the phone and the live audience. Below is a summary of the engagement:
Updates from the IPO
Best Practices: The IPO has been discussing a best practices manual for some time now, and while it is compiling information, it is not ready to make this available for the public until it completes more compliance reviews.
Compliance Reviews: The IPO has been conducting successful compliance reviews of Regional Centers (RCs) and expect the number of reviews to increase in the upcoming year. One tip the IPO gave to RCs was to immediately identify a contact person as soon as it has been contacted for a compliance review. The IPO conducts compliance reviews to ensure that RCs are operating the way they should be and have proper oversight over both the New Commercial Enterprise (NCE) and the Job Creating Enterprise (JCE). This is distinguishable from a site visit, as the site visit is focused on the JCE and ensuring that its activities are consistent with the business plan. This is most often done before adjudicating an I-829 application.
Transparency and Customer Service: The IPO is striving to make more information public. For example, RC approvals and terminations are available on the USCIS website in the reading room.
Filing I-924A: The IPO acknowledges that there is currently an issue with the form instructions, and while it has not been corrected yet, it will be soon. Moreover, the IPO has suggested that for possible faster processing for an I-924A, practitioners should list all I-526 petitions already filed associated with exemplar in a separate cover letter so that the adjudicating officer can pull the petitions together. This is not required, but it will greatly assist the IPO.
FY 2018 Focus
Faster Processing Times: The IPO is committed to speed up processing times. One initiative the IPO has taken over the past year is to cross-train staff including their economists to adjudicate applications. To speed up lengthy processing times they have focused first on cross-training for the review of I-829 petitions. In the near future, the IPO will start doing the same cross-training for staff on the adjudication of I-526 petitions. The IPO does acknowledge that I-526 petitions reduction in review time will take longer to bring down because of the sheer volume as compared to the I-829s.
Better Customer Service: The IPO has changed their practice and now has many of their officers answering customer service inquiries. They are finding that due to this, response time to customers have gone down from 20 days to five days. Many inquiries are answered the same day or the next day.
Sample of Questions from Stakeholders
Policy Manual: While the IPO will keep working on the policy manual, it is not yet ready and may take some time to finalize.
EB-5 Regulations: As EB-5 stakeholders know too well, the comment period for the proposed EB-5 regulations closed in April 2017. The Unified Agenda shows an action date of April 2018, during which time DHS will need to review all comments received.
How I-526 Petitions are Adjudicated: The IPO does not subscribe to a strict first-in-first-out (FIFO) order when it comes to petitions. They are currently taking a different approach to achieve efficiency, and to do so, it is taking all I-526 petitions associated with a project, and adjudicating the project first (whether the exemplar or the I-526 petition). If the project receives a Request for Clarification (RFC), the I-526 petition might receive both an RFC and a Request for Evidence (RFE); however, once the project is clear, all the associated I-526 petitions are put in a mass queue and then adjudicated in a FIFO order. The IPO made it very clear that it does not prioritize cases associated with big projects.
RCs in Good Standing to Speed up Geographic Expansion Adjudication: The IPO is striving to speed up these requests as soon as possible.
Will I-526 Investors be Subject to Employment-Based Interviews: The USCIS has expanded its interview program for AOS applicants to all employment-based applications filed after March 2017. It has not yet been clarified whether I-526 investors are part of this group, but the IPO believes it is likely.
Can I-526 Petitions from Chinese Investors be Separated from Worldwide Investors: Chinese investors are currently subject to retrogression. The question is whether worldwide investors can have their petitions in a separate queue so that their petitions can be adjudicated faster since their priority dates are current for most months. The IPO will consider this in their efficiency strategy but it is unlikely.
Can Investors Move Funds from one JCE to Another or Switch Regional Centers Before the CPR Period? This is not permissible as this is a material change.
How to File New Form I-924A: I-526 petition withdrawals should be included with the reported denials when filing the form. The form must be filed in the 90-day period before the end of the year. Applicants can also select to report data from a single year or multiple fiscal years.
What Constitutes as Material Change: If there are any changes in the JCE and the RC decides after I-526 approval, but before CPR status is granted, to redirect the money to another JCE in a similar location, it would be considered a material change. If the RC did make this change, it is encouraged that the investor contacts the IPO.
Will the IPO Consider a Sustainment Period for Jobs Similar to Marriage-Based Application: The IPO does not have the authority to change this.
Tips for Adjudicating Missteps: If practitioners are noticing adjudication errors, an email can be sent to the IPO to request that the leadership team take a closer look to ensure the correct policy is applied.
If the RFC is Answered but the I-526 Petition Still Receives RFC and RFE: Both must still be answered. There is no shortcut available to avoid answering the requests.
RFEs Issued but Not Received: The IPO will reissue RFEs but will not resend an RFE. This suggests that the wording in the request to the IPO is very important.
Capital Must be Made Available to the Businesses Most Closely Related to Job Creation. The IPO reiterated a controversial stance that EB-5 funds must be provided to job creation entities in order for the use of such capital to be permissible under its rules, regulations, and policies.
Bridge Financing Must be Short-Term. While the IPO acknowledged its bridge financing policies do not always comport with the realities of real world finance, they reiterated their belief that any bridge financing under the EB-5 Program must be short-term.