You are hereFrequently Asked Questions / EB-5 Processing & Procedures / [HOT] What is a "pre-approval" for an EB-5 project?

[HOT] What is a "pre-approval" for an EB-5 project?


It is a procedure allowed by USCIS whereby a regional center submits, in a form of an amendment to the regional center designation -- I have no idea why USCIS should consider a new project as an amendment of the designated RC when all one is asking is to confirm that the proposed EB-5 project falls within the parameters of the approved RC designation and complies with the EB-5 law -- for a pre-approval of a particular EB-5 project the regional center will embark on in a very near future. This procedure was set up by USCIS to give some consistency and shorten adjudication time frames for I-526 petitions filed in connection with a particular EB-5 project. Supposedly, if CSC gives a pre-approval of the EB-5 project to be embarked upon, all project-related issues would be deemed to have been approved, and only investor-related issues, such as lawful source issues, would need to be reviewed and decided by CSC examiners. This would supposedly lead to shorter processing times for I-526s. [Note we are talking about the pre-approval where there is no material change (or misrepresentation) in the project or project documents from the time the pre-approval is issued to I-526 filing date. If there is any material change, we would be the first one to say that USCIS has the right to question the project at the time of I-526 review even if the project obtained a pre-approva.]

However, this is not the way things are turning out. Read the below article written by another EB-5 practitioner regarding this issue:

http://eb-5center.com/node/963

Something has to be done by USCIS/CSC to address and fix this so-called "pre-approval" procedure, because it is not a "pre-approval" at all.

However, another former insider offered his perspective on this issue.

The idea for an exemplar I-526 came from EB-5 Stakeholders. USCIS did not want to do it. It was pushed on to USCIS via political lobbying and pressure from EB-5 stakeholders and their Congressional supporters.

The idea is to allow a Regional Center to file an exemplar I-526 as an I-924 amendment because a RC cannot file an I-526. Only an alien investor can file an I-526. Rather than ask an investor to be a test case and risk denial, the RC files the I-924 which is NOT a visa petition and therefore is not subject to a showing of "eligibility at time of filing". Once the underlying plans and standardized transaction documentation is fully EB-5 Compliant and fully vetted by USCIS, the RC can market the package as vetted and compliant with a specific notice from USCIS for that package of prima facie evidence of eligibility. The exemplar is not tied to an actual EB-5 priority date so the substandard documents can be changed and it is not an impermissible material change no matter how huge the changes that are made prior to real I-526s being filed en masse by investors.

The problem comes from RC sponsors and foreign agents who have misrepresented it as a "sure thing" and then they either have altered the documents to fall out of legal compliance through illegal and unethical "bait and switch" tactics or the actual project runs into problems or simply fails outright.

However, if the following is indeed what happened, USCIS did not do a good job of making its position clear. Many RC sponsors and EB-5 practitioners, who are outsiders to the internal goings on at USCIS, had no idea on how USCIS viewed the "pre-approval" procedure. [For example, we participated in all USCIS sponsored EB-5 teleconferences, and we had absolutely no idea that this was how USCIS viewed the pre-approval procedure!] In addition, if RCs knew that this is how USCIS viewed the pre-approval procedure, many of them would not have obtained the pre-approvals for their projects -- indeed many EB-5 practitioners would not have recommended RCs to go for the pre-approvals -- in the first place.