[HOT] My one biggest concern of USCIS's handling of the EB-5 Program


If someone asked me what is my single biggest concern (or constructive criticism) of the way USCIS has and is handling the EB-5 Program, it would be that their policy guidance memos not only affect prospective EB-5 projects and petitions, but sometimes adversely and retroactively affect past EB-5 projects and EB-5 petitions. Let me explain further.

I came to accept the fact that USCIS can do pretty much anything to the EB-5 Program because it is a governmental agency in charge of the EB-5 Program. I have no problem with this in so far as USCIS acts within reason. This sounds like a defeatist attitude but it's a realistic attitude born of experience and realization that I simply cannot affect or influence whatever policy USCIS will eventually adopt.

Most regional centers and EB-5 practitioners simply accept the USCIS's many policy guidance memos and try to operate under the changed landscape, and I am one of them. But what the heck are you supposed to do with the past EB-5 projects and/or EB-5 petitions, which in good faith, proceeded under the old EB-5 law full of holes, at the time when the EB-5 law failed to address many important issues which were never properly analyzed and decided upon? For example, many new issues concerning job-creating issues for the purpose of meeting I-829 requirements have arisen during the last several years. In essence, the EB-5 law is being made up as we go along.

The fundamental fairness dictates that USCIS should apply its new policy memos prospectively, and treat the past EB-5 projects and petitions in a fair manner. But sadly, this is not the case. More often than not, USCIS appears to want to justify that its new positions taken via so-called policy guidance memos were in fact what the EB-5 law has been all along. Experienced EB-5 attorneys know that this was not the case.

For example, in the past there was no concept of "material change" in the EB-5 law when it comes to the adjudication of I-829 petitions. Katigbak and Izummi cases are simply not applicable to these cases; they are only relevant when there are changes while I-526 is pending. In fact, when you review I-829 statutes and regulations, there is no mention of "material change" concept anywhere. There is only no de-coupling language in the 9th Circuit Chang case, but that does not mean that changes to the job-creating project cannot take place, as long as the specific I-829 requirements are met.

Aside from the fact that USCIS policy guidance memos are not as clear as they could be and create more new issues than resolve them, I have absolutely no complaint or problem with USCIS's creating and applying whatever new policy guidance memos prospectively. I am willing to follow what USCIS wants us to do, as long as they are applied prospectively. No one wants to be a hero and fight USCIS when you can avoid doing so. [Just consider how many times USCIS changes it position on construction jobs and TEA census tracts issue. Actually, I still do not know what the official USCIS position and rationale is on the issue of combining contiguous census tracts! The June 30th 2011 presentation materials state that USCIS is reviewing this issue.] But USCIS has to be fair in recognizing that in the past, many of the EB-5 issues and procedures simply did not exist and at best, were very unclear, so that no one, including USCIS, knew what the USCIS policy or position was on many important EB-5 issues or areas; and that is the very reason why USCIS is issuing guidance memos in the first place: To create and apply new policies to EB-5 issues that have not been properly addressed before.

All I am asking is that USCIS be clear in communicating its new EB-5 policies and be fair in applying its new policies prospective and not retroactively, especially when the new policies adversely affect the past or pending EB-5 projects or petitions. Is this too much to ask? All I am asking is that USCIS be fair and honest about the EB-5 history; and recognize that for the EB-5 Program to succeed, regional centers and USCIS must cooperate rather than be adversaries.