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[HOT] Proposals that should be considered and decided upon promptly for the benefit of the EB-5 Program

We would like to present this request in an open letter format to both the Congress and USCIS, because certain improvements can be made to the EB-5 Program without going through legislative change route.

Dated: November 2, 2009

"Dear Congress, USCIS EB-5 HQ & CSC,

If you believe the EB-5 Program is worth keeping, we urge you to seriously consider making the following changes to the EB-5 Program as soon as possible. If you do not, then please scrap this entire Program.

1. Allow part-time jobs to be counted. Specifically, allow two part-time jobs to be counted as one full-time jobs, whether you do this through "full-time equivalent" concept or another concept. There is no justifiable reason why only "full-time" jobs should be counted as contributing to the U.S. economy. This change probably can be made without the intervention by the Congress. Many positions in certain industries are part-time positions and cannot be considered as "job-sharing" positions, but why should the non-job-sharing part-time positions not be counted? In our opinion, jobs are jobs.

2. Consider lowering the required job-creation numbers for both direct, individual EB-5 case and regional center EB-5 cases. It's too difficult to create 10 new full-time positions. We think even 5 full-time positions is not an easy requirement during these days. We would propose 5 full-time positions equivalents for direct, individual EB-5 cases, and 8 for Regional Center EB-5 cases.

3. You might want to designate a conservative economic methodology that should be designated as a mandatory job-counting methodology, such as RIMS II (or another methodology) because it is very hard for USCIS adjudicators to check to see whether all material assumptions underlying the economic methodology used to count the jobs have been met. Otherwise, the name of the game will be who can hire the most creative economist to come up with the most inflated job numbers.

4. Allow the Governor of each state to designate their own geographic TEAs. They should know best which areas need the most economic development. And do not make the required investment amounts between TEA and non-TEA cases too large. Consider making the required investment amount for TEA cases something like $600,000 USD, while $800,000 USD for non-TEA cases.

5. Allow I-829s to be filed at any time from 21st months to 48 months after acquiring conditional green card status in recognition of the fact that some EB-5 projects require longer time to create jobs.

6. Establish a convenient way for EB-5 project to pursue a replacement project to meet the job-creation project in the event the initial EB-5 project fails or is likely to fail. Is it better to give another opportunity for job-creation that will benefit the U.S. economy or force the project to be abandoned? It's an easy choice.

7. Set up an advance review procedure to review the investment structure of a particular EB-5 project. EB-5 law is far from being a clearly-defined area, and therefore, EB-5 investors and attorneys deserve a level of certainty that as long as they follow and fulfill the guidelines set, they will obtain permanent green cards. It's a shame that even after all these years, there is no clear guidelines on many important issues concerning EB-5 law. No Regional Center or EB-5 investor wants to go to AAO and eventually get denied anyway.

8. If the Principal Applicant gets I-829 conditions removal approval, I-829s for dependents should automatically be considered to have been approved. Dependents should not be forced to pay huge filing fees for I-829s when PA's I-829 has been approved, unless they have some removable issues.

9. Create a separate operation account for EB-5 administration. Given huge filing fees charged for EB-5 applications, EB-5 investors deserve a better service. Need to hire and train more USCIS officers so the EB-5 Program can grow and benefit the U.S. economy.

10. Charge at least $10,000 USD filing fee for Regional Center designation application, so that these designation applications can be reviewed thoroughly, so that clear guidelines can be set for RC designations instead of allowing certain RCs to commence operation and then later forcing them to change some aspects. We believe it was not too difficult to foresee that many complex issues would arise involving large mutual fund type of Regional Center where the funds will be allocated among future undefined multiple projects; yet, these mutual fund type of RCs have been approved.

11. Consider reserving the power to USCIS to amend the designated Regional Center designations, so USCIS can on its own amend certain parts of the already-granted regional center designations, so that USCIS can shape the EB-5 Regional Center Program as needed, if it feels that it has made mistakes. However, do not allow the projects already started (and participating EB-5 investors) to be penalized by retroactive changes made by USCIS. Regional Centers would probably prefer getting amended by USCIS rather than go to AAO route where precious time and energy will be lost.

12. USCIS should adjudicate I-526s within 3 months period of time to meet the real-world demands, and I-829s should also be adjudicated within 3 months to cause least inconvenience to EB-5 investors. Believe us when we says that USCIS and CBP officers do not, in real life, treat Conditional Green Card holders same as Permanent Green Card holders.

13. Allow CSC examiners to contact Regional Centers via email and vice-versa when questions arise regarding the structures of regional centers. Why not use the available technology? Often, real-life projects cannot wait for several weeks of sending out and receiving RFEs.

14. Establish a group of USCIS officers who can act as a communication centers for EB-5 cases and who is willing to find out and resolve EB-5 related problems, such as local USCIS Field Office refusing to stamp evidence of PR status while I-829 is pending, or CBP officer who refuses to accept the stamp as an evidence of PR status, contrary to the established immigration laws and regulations.

15. Consider sitting down with experienced EB-5 attorneys, economists and some Regional Center owners for one day to go over the changes that can be made. Listen to the arguments and then decide to either adopt some and/or ignore some recommendations made. We see many changes that can be made to EB-5 Program even without legislative changes. If you don't want to listen to the probable disagreements among immigration attorneys and/or regional centers, you can even listen to one by one and then decide to adopt the most reasonable recommendations.

16. Please implement quickly the new I-526 amendment procedure formally announced by USCIS HQ during September 2009 stakeholders meeting in Wash DC. Basically, mean what you say and say what you mean.

17. Last, but not least, please recognize that EB-5 regulations are woefully silent on many important EB-5 issues -- so please do not say that "such and such act is prohibited under the EB-5 regulations", when the EB-5 regulations are silent. It's just as valid to argue that silence means that not-covered actions or arrangements are permissible. The truth of the matter is that the existing EB-5 regulations do not accurately reflect the EB-5 statute; and moreover, the existing EB-5 regulations are arguable ultra vires and clearly inadequate to support a successful EB-5 Regional Center Program. The only way to overcome the inadequate regulations is by issuing clear and well-reasoned guidances.

We believe if the above changed are made, EB-5 Program may really contribute to the U.S. economy.