What has Regional Center EB-5 Program proven up to this point?


Let's examine more closely what exactly has the Regional Center Program (the "RC Program") proven up to the present time, as of April 2010.

What the EB-5 Regional Center Program has proven up to this point?

1. Most RCs have shown that a great majority of their I-526 petitions have been, and will be, approved by USCIS. Few RCs may even have hundreds of I-526 petition approvals, partly because they started marketing and operating soon after the EB-5 Regional Center Program was re-instated in 2003 and were conservative enough to avoid bad lawful source EB-5 cases which might not have been able to meet the lawful source requirement.

2. Most RCs have shown that EB-5 clients who obtained I-526 approvals have acquired Conditional Permanent Resident status via either Immigrant Visa processing or I-485 adjustment applications. In other words, it has been shown that CPR status can be achieved.

3, Few RCs which started putting together their regional center EB-5 projects around 2003, have shown that "many" investors who participated in several EB-5 projects have indeed acquired Lawful Permanent Residents (LPR) status via I-829 petitions. The reason why more I-829s have not been approved is mainly because USCIS is taking often more than 1 year to adjudicate the I-829s, even though applicable regulations say the I-829s should be decided within 3 months. What is the "many"? We are not talking about hundreds of I-829 approvals but "tens" of I-829 approvals at this point, partly because USCIS has not decided I-829s quickly enough. To date, the largest number of I-829 approvals obtained by a single Regional Center is around 100 and counting.

4. In some EB-5 projects, investors did manage to recoup their initial investment amount, aside from any profits made. Therefore, these investors obtained both I-829 approvals and recouped their investments.

The above are not merely our opinion; they are proven facts as of now. We also have strong reasons to believe that direct, individual EB-5 cases have a higher denial rate (relative to number of cases filed) than Regional Center EB-5 cases. We cannot be sure on this point, because USCIS does not break down the approval/denial stats into RC and non-RC cases; but based on our awareness of track records of all major RC Programs, we are pretty certain that most I-526s and I-829s for RC-based EB-5 cases have been approved to date.

What the EB-5 Regional Centers Program has NOT yet proven?

1. It has not proven that all Regional Centers can withstand the recent downturn in the world economy. Perhaps it's not fair to expect that all Regional Centers projects produce 100% success rate in any type of economic conditions, but alien EB-5 investors do have a high expectation or hope that their EB-5 cases will yield both the return of investment and permanent green cards.

2. It has not proven that it can deal with many of I-829 related issues that are of first impression to both Regional Centers and USCIS -- such issues as what are the available rights and procedure under the EB-5 law in the event there are changes to the first EB-5 projects AFTER I-526 petition approvals. Specifically, USCIS has not defined what are the "material" changes and what are "immaterial" changes.

3. Will many of EB-5 projects be able to create requisite jobs in timely manner, i.e., within the 2 years of conditional resident status period? Certain industries may be prone to a downturn in the economy.

4. USCIS has not proven that it can deal fast enough with the many of real-world issues that arise as more regional center projects have started, although no doubt it is trying. USCIS often takes the position that there is nothing in the EB-5 statutes and/or regulations which allows so and so action: this is all good, but a strong argument can be made that USCIS often misinterprets the EB-5 statutes and regulations in an unnecessarily narrow manner. Also, a strong argument can be made that there is nothing in the EB-5 statutes and/or regulations which prohibits so and so action.

5. USCIS has not proven that it has sufficient number of professional staff to adjudicate EB-5 cases consistently, quickly (within 3 months). Moreover, there is no medium for regional centers or EB-5 practitioners to ask and obtain definitive answers to specific legal questions. CSC EB-5 division may simply be over-loaded with the work.

6. USCIS has not proven that it is willing to exercise its discretion to approve I-526 and I-829 cases in "close call" cases.

7. Congress has not proven that it really wants to give a boost to the EB-5 Regional Center Program by making a permanent extension a reality. In our opinion, the Congress should either scrap the EB-5 Regional Center Program or make it a permanent immigration program. It doesn't make any sense to have this EB-5 program if many foreign investors who invest money are going to be hurt.

In conclusion, it is plain wrong or ignorant to say that the RC Program has proven nothing. In fact, RC Program has proven many things since its "revival" began in 2003, and it may end up proving a lot more in one or two years to come, only if the RC Program is given a chance to grow into a win-win situation for foreign EB-5 investors and U.S. economy that is in serious need of new job-creation through investment. However, there is no question that the EB-5 Regional Center Program will need to prove more for the Program to take off.