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[HOT] The must-happen changes at USCIS for EB-5 Program to be sought after by EB-5 investors


As of April 10, 2011, the below are the changes which must absolutely occur for the EB-5 Program to be "in demand" by foreign EB-5 investors.

For I-526s:

  • The adjudication time for I-526s must come down to around 3 months without RFEs and to 4 months with RFEs. Currently, the adjudication often takes anywhere between 6 ~ 1 year, depending on whether RFE is issued. This is unacceptable.
  • The "pre-approval" procedure for a RC-based EB-5 project cannot take more than 2 months to be useful. Otherwise, this procedure just is not very useful. Why would regional centers spend more money and time to obtain a "pre-approval" when you cannot afford to wait 6 months or more it currently is taking for CSC to issue "pre-approvals"? Moreover, often CSC examiner does not honor the "pre-approval" issued and will still issue RFEs on the underlying RC project. Right now, as it stands, there is no useful benefit to the "pre-approval" process.
  • The inconsistency in the I-526 adjudication leads to confusion. For example, one examiner approves one I-526 without any RFE on the project, while another examiners issues a RFE on the project. This kind of inconsistency can be reduced by designation one examiner for all I-526s associated with the particular RC based EB-5 project, or by assigning two examiners but having them work as a team.
  • CSC must become more sensitive to the business-driven needs of the EB-5 project. On one hand, requisite jobs are required to be created, but on the other hand, real projects cannot wait around 6 to 10 months for I-526 petitions to be approved.
  • An efficient database needs to be implemented to allow examiners to ascertain that a "pre-approval" for a specific EB-5 project was issued, so that pending I-526s filed without the "pre-approval" document can be located easily and be adjudicated expeditiously without revisiting the underlying EB-5 project's compliance with the EB-5 law.

For I-829s:

  • USCIS must promptly issue clear guidance on various issues affecting I-829s that are more in compliance with the EB-5 statutes and regulations than with four AAO precedent cases. One EB-5 practitioner has aptly stated that "examiners are over-relying upon the four 'precedent decisions' and under-relying upon the plan meaning of the law and regulations." Often, they prohibit certain actions that are clearly not prohibited by EB-5 statutes and regulations governing I-829 adjudications.>/li>
  • USCIS must be fair in not penalizing I-829 petitions involving issues for which there was no clear guidances when the underlying EB-5 projects commenced, especially where EB-5 statutes and regulations impose no prohibitions. USCIS should be more forthright in recognizing that indeed many important issues governing I-829 adjudication have only recently popped up, as more I-829s are being adjudicated.
  • CSC must also be more consistent in the adjudication of I-829s for RC-based cases. Let's assume there are 50 I-829 petitions filed for one RC-based EB-5 project. After first five I-829 petitions have been approved without any RFEs, CSC can suddenly issue involving the EB-5 project which previous examiners did not object to. For example, CSC can suddenly raise the issue involving E-Verify law one year later for another I-829 petition, which is unfair especially when you consider that the E-Verify obligations were not in existence when the EB-5 project began. In a RC-based EB-5 project, it is especially unfair for CSC to argue that each I-829 petition stands on its own and therefore, each examiner can raise different issues for the same RC-based EB-5 project: If each CSC examiner can raise issues for every I-829 petition filed, that means an endless opportunities to find something wrong with the EB-5 project. The common sense dictates that previous approvals for I-829s should be given some deference. Now, this inconsistency might arise because there is no active supervisory guidance at the CSC.
  • All of the above must-happen changes point to the need for an active supervisory review and support to make sure the examiners' decisions are consistent. Examiners cannot take a bullet approach to issuing RFEs, trying to shoot until one hits something.

For both I-526s and I-829s:

  • AAO must alter its image of rubber stamping USCIS decisions when EB-5 petitions are certified to AAO by USCIS or appealed, by first examining the EB-5 statutory and regulatory provisions; and interpret and apply these requirements in a real commercial settings.
  • USCIS must realize that the EB-5 Program is a unique immigration category -- unlike all other employment-based immigrant categories, the purpose of the category is to create jobs rather than jump through various hoops to fill a position -- and the Program needs to be given a latitude to operate in the real commercial world to fulfill its goal of creating jobs, the EB-5 Program will always be viewed as the great, unique Program which never fulfilled its promise.

There is a huge gap between disallowing any actions or arrangement which is not specifically supported by the EB-5 statutes and regulations, and allowing any action or arrangement which is not specifically prohibited by the same EB-5 statutes and regulations. We believe USCIS should take the first approach, but will they? If the past is a good indicator, probably not.