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[HOT] What can USCIS do to help the Regional Center Program reach its potential?


* The content of this article reflects the opinion of Young Noh, a U.S. immigration attorney specializing in EB-5/E-2 cases.

I would like to see the Regional Center Program flourish; I really do. But sometimes, I think the EB-5 law and regulations are so confusing -- not due to the inherent complexities of the subject matter but due to the unintentional confusion created by poorly written statutes and regulations, as well as the USCIS' failure to clarify the issues -- that the Regional Center EB-5 Program is bound to fail again. I understand that USCIS cannot enact new EB-5 statutes, and that they are stuck with the EB-5 statutes as they are -- and this means they cannot on their own delete the 10 full-time job creation requirement because that's required by EB-5 statute enacted by the Congress -- but it seems to me that USCIS can, and must do, few things to avoid the EB-5 Program becoming once again a failed Program which never reached its great potential.

1. Although only Congress can enact new EB-5 statutes or amendments, the USCIS can nevertheless draft tighter and clearer regulations.

2. They can issue well-reasoned memos and guidances that clarify many issues related to EB-5 law and reflect the real-world constraints of commercial businesses.

3. They have to set up a system where the work products of the examiners who review and decide EB-5 cases are properly supervised or reviewed, to make sure that the EB-5 laws are applied consistently and the cases are decided expeditiously. Experienced supervisory personnel needs to review the work of USCIS examiners who decide EB-5 cases to make sure the existing laws are being applied in a consistent and fair manner. Where the law is not clear, they should give the Investors and Regional Centers a benefit of doubt. That's being fair.

4. Until the EB-5 law becomes more established, USCIS should provide a medium where Regional Centers and attorneys can contact them to "pre-clear" some issues in advance.

5. They should utilize internet by issuing RFE and receiving RFE responses via internet.

6. They should review and adjudicate EB-5 cases in a prompt manner.

7. USCIS examiners have to get away from the "gotcha" mentality that used to pervade the USCIS' attitude towards the EB-5 cases, and have to recognize that their own failure to set clear standards was partly at fault for the past down-fall of the EB-5 Program. Simply put, someone at USCIS needs to be willing to get his or her hands dirty to make the EB-5 Program work.

I once ran across a potential EB-5 client who told me "I would really like to do EB-5 Program, but having studied the history of EB-5 Program, one thing I don't trust is USCIS itself."