2007/09/25 -- Q & A USCIS AILA Meeting Minutes

2. EB-5 Investor Program

i. AILA seeks USCIS' views regarding the meaning of "investment" for EB-5 purposes. In particular, AILA believes that USCIS should distinguish the concept of "retained earnings" in a traditional C corporation from "capital account balance" in a partnership or limited liability company (LLC) format. AILA respectfully requests USCIS review and consider the arguments and recommendations on this issue in the attached Addendum I to this agenda.

Response: We appreciate the perspective. It is difficult to provide a blanket statement as to whether certain complex financial arrangements will be approved. However, in general USCIS believes a reinvestment of proceeds is not an infusion of new capital into a business.

ii. Does Congress' deletion of the establishment requirement in 2003 (which did away with the requirement that the alien entrepreneur personally establish the commercial enterprise) mean an EB-5 investor can purchase an existing business that was created after November 1990 (meaning the commercial enterprise is "new"), as long as job requirements are met, without having to restructure the commercial enterprise? Section 22.4(h) of the Adjudicator's Field Manual seems to suggest this interpretation.

Response: Yes, an alien may demonstrate that a new commercial enterprise has been established by proving that it was established after November 29, 1990. In such cases, the alien does not need to further restructure, reorganize, or expand the business in order to meet the requirements of 8 CFR, 204.6(h).

iii. If, for example, the principal EB-5 investor obtains conditional permanent resident (CPR) status on January 1, 2007 (with expiration date of January 1, 2009), but dependents follow to join and receive their CPR status on January 1, 2008 (one year later), will the dependents' CPR end on January 1, 2009 (the same date as Principal) or January 1, 2010? Also, if the dependents' CPR status ends on January 1, 2010, do they have to apply for I-829 conditions removal separately from the principal?

Response: Yes. Once the principal's conditional period is completed and he/she has conditions removed, any dependents who are conditional permanent residents do not need to remain in conditional status and may have their conditions removed. The principal's requirements and eligibility regarding his investment actions are controlling.

iv. If one dependent family member does not obtain CPR status at all, while the Principal and other family members obtain CPR status, can the family member, who never obtained CPR status, still be included in the Principal's I-829 condition removal?

Response: No, the dependent who did not adjust and become a conditional permanent resident may not have conditions removed. The dependent must adjust status and become conditional first before conditions can be removed. If the dependent adjusts status after the principal has had his conditions removed, then the dependent will not be conditional.

v. If a principal beneficiary has already obtained CPR and has also successfully removed the conditions and is now a lawful permanent resident (LPR), can a dependent beneficiary who never obtained CPR status follow to join as an LPR, after the principal obtains LPR status through an I-829?

Response: Yes.

vi. The USCIS EB-5 unit at HQ asked EB-5 regional centers in July 2006 to supply information on their current status and activities. When will a summary of those replies be available?

Response: There are currently no plans to provide a summary of the current activities of each approved regional center. However, a list of approved and operating regional centers will be made available in the near future.

vii. Inconsistencies in the issuing of receipts, stamping of passports, and adjudicating I-829 petitions leave 2-year conditional residents and their dependents without sufficient documentation to evidence authorization to travel, to work, to be eligible for drivers' licenses, etc. Can USCIS address this problem?

Response: We suggest conditional residents who believe they are not getting the documents to which they are entitled should follow standard procedures in place to make an inquiry. However, we would further appreciate AILA's providing some examples to illustrate the problem they perceive exists.

* Addendum I mentioned above is attached hereto in its entirety.