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[HOT] Our biggest criticism about the EB-5 Program -- an open letter to Director Mayorkas


On Feb. 2, 2011, USCIS Director Mayorkas had a Public Engagement to hear comments on how USCIS could improve in various areas. If he really wanted to hear honest opinions in a more effective manner, he should designate an Official USCIS E-mail Address which will be forwarded to him for his review. Not many people will say what they really feel over these "public" teleconferences for the fear of being targeted as a "trouble maker" or "complainer" by USCIS. Besides, the queue line to ask questions is so long and the time so short that it's impossible to discuss issues in more details.

The biggest problem in the EB-5 area -- as in most areas -- is that the adjudication is inconsistent. We have seen many cases where cases with the exact same facts are approved by one examiner, while RFE'd or denied by another examiner. We are aware that each case stands on its own, but it's very disconcerting to see the cases with the same exact facts in the same regional center based EB-5 project be adjudicated differently. Also, I-526s are RFE'd on project-related question, even though the project was "pre-approved" and there has been no changes to the project after the pre-approval. This kind of problems could be easily solved by a better USCIS data base system and a better review system.

The lack of consistency in adjudications indicates that there is no strong management or supervisory review at CSC. We have seen instances where CSC totally missed what we clearly said in our initial submission and RFE responses, so that after a while, it becomes incredibly difficult to get things cleared up. Also, once CSC makes mistakes, instead of admitting that they were mistaken, they can often raise entirely different issues.

The adjudication is also unfair in that they say the law is so and so on certain issues, even though there was no such law or policy governing such issue at the time the project was undertaken. USCIS has to be cognizant of the fact that the EB-5 law was relatively bare and is being filled up as new issues arise. And where certain actions were taken by petitioners at a time when there was no EB-5 law or policy prohibiting such actions, USCIS should not try to apply a new policy or interpretation of the EB-5 law which it arrived after the fact to the past actions which were undertaken in the past when there was nothing in the EB-5 law or policy prohibiting such actions.

Therefore, our recommendation is:

1. Make new policies clear, and make sure examiners are aware of them.

2. Be fair and do not apply these new policies retroactively.

3. Adjudicate consistently and fairly.

There is nothing magical solution, and instead of talking, let's see some actions being taken.