[HOT] Good practical ideas that will improve the EB-5 Program if implemented


In this article to be updated and revised continuously, we are going to list some good, practical ideas which, if implemented by USCIS, will truly improve the EB-5 Program. However, we are not under an illusion that USCIS will implement any of the below ideas.

  • Even when USCIS approves I-526 immigrant petitions, USCIS should notify the Regional Center if they believe the RC should change some aspect of the project in future, or if USCIS has some concerns. This is called a pro active communication which will prevent unintentional mistakes and save time and efforts for everyone.
  • USCIS should start uploading FAQ on various EB-5 issues, so that everyone, including EB-5 stakeholders and CSC examiners, will be aware of USCIS positions on these issues. Again, a lot of problems are due to the failure of USCIS to clearly and pro-actively communicate their positions on many of the key issues which are creating a lot of unpredictabilities.
  • USCIS really has to be able to issue pre-approvals within two months at the maximum to help establish predictabilities. No RC wants to have a problem project or wants to have any dispute with USCIS, but frankly USCIS has been vacillating and unclear on too many issues for the RCs and EB-5 investors to participate in the EB-5 projects with confidence.
  • USCIS should stop treating Matter of Ho as the guideline on how business plans should be written. Specifically, USCIS should recognize that Matter of Ho holding on the business plan was for a stand-alone, small business, and its holding is in some aspects inapplicable to larger projects, especially to loan-making investment structure. For example, there is no way let's say Costco is going to reveal "confidential" information on its pricing structure, etc. when it plans to build another store. Besides, everyone knows Costco is a bona-fide and viable business, and therefore, a business plan for this kind of NCE does not and cannot mimic standard business plan for a new, small business which will at most create around 15 jobs. A footnote in the Matter of Ho decision even says "unique" circumstances should be taken into account, but USCIS examiners seem to be fixated upon applying Matter of Ho inflexibly. For example, when a company like Costco decides to build a store, they probably did a very thorough study of the feasibility of the location and competitors in the area, but there is no way Costco is going ot reveal in the I-526 submission the company's confidential information of how it goes about selecting the location, outcompeting competitors, etc. This is plain lunacy to demand such confidential information when everyone knows that Costco is a viable business. Same thing with McDonald. USCIS has to use some common sense and give a break. In our opinion, Matter of Ho is being incorrectly applied to RC situations.
  • Since EB-5 statute leaves it up to USCIS can revise EB-5 regulations to allow two part-timers in the same position to add up to one full-time position. I never understood why creating two part-timers, for example two waiter jobs, was not as good as creating one waiter job, especially when part-time jobs are getting more common.
  • Allow the RC to file a "master" copy of the RC and Project Documents to be used as a "master" copy for all I-526s, or better yet, allow I-526 packets to refer to this "master" copy and include it by reference in its I-526 packet. No need to waste file storage space at CSC, and actually this procedure will make the adjudication process more efficient. Let's apply some common sense and be creative in the way it approaches adjudicating EB-5 cases to shorten the review and adjudication times.
  • Is there an obligation on the part of each and every I-526 petitioner-investor to prove that all funds invested in the NCE are lawful source? What is the consequence to either the RC or other EB-5 investors complying with the law, if it turns out later that a single EB-5 investor's fund -- whose I-526 was approved and therefore his fund was invested into the NCE -- turns out to be unlawful?