2012/01/12 -- Redlined Overarching Draft Memo by Mayorkas with further changes

This version contains redlined changes to the November 9, 2011 draft overarching memo. If USCIS could arrive at a definitive and clear guidance for a SINGLE EB-5 issue which all CSC examiners will follow for every time USCIS holds a meeting, then there would be no more EB-5 issues misleading or confusing EB-5 regional centers, practitioners and investors. Discuss one single issue and then settle it and then move onto another issue -- that's the way it should work. USCIS has to issue clear guidance and then enforce the guidances through internal training and supervision -- that's the only way the EB-5 Program will progress.

At this point, we are not optimistic that many of confusing EB-5 issues will be liberalized; and moreover, it appears that it will take very long time for any policy changes to take place in final AFM regulations format. Lastly, according to many EB-5 practitioners who heard the "Conversations with Director Mayorkas" where other USCIS officials were present, they got the feeling that many USCIS officials did not share the expressed opinions of Director Mayorkas. Therefore, it appears that USCIS policy changes and/or clarifications will be finalized only after a very long wait.


Our selective (non-comprehensive) notes of this teleconference: Note nothing has been decided definitely during the meeting except for identifying certain issues which will be reviewed internally among USCIS officials. One positive outcome of this "Conversation" is that CSC officials are becoming or being made more aware of various issues out there.

Multiple wholly-owned businesses can receive portions of the requisite amounts and create different number of jobs. Do you need to identify which business will receive what in a RC context? In his opinion, Director Mayorkas seems to require causal relationship. Investor A need to show his money created jobs? Or I-526 needs to identify where the money goes and which investors get which jobs? If wholly-owned, no problem. If not wholly-owned, then NCE which receives the money should be deemed to have created the jobs. One thing is clear: the NCE entity should create jobs.

Investment docs should govern which investors/petitioners should get what jobs.

What is the reasonable period of time within which to create requisite jobs? If jobs will be created in 18 months, should USCIS approve I-829 even before then? Amended I-526 may be an option where there has been big changes. What is "reasonable" must be decided depending on the cause for the delay, level of credibility, etc. Mayorkas sees "reasonable" period of time not very long.

Chinese currency law RFE raised. Director Mayorkas said they are aware and will look at it. Relevant issue is whether if the EB-5 money violating the Chinese currency law can still be deemed "lawful" money under the US law, and whether it would be permissible for the EB-5 money to be commingled with unlawful money.

Trending issues should be disclosed by USCIS/CSC, so that the EB-5 community can be aware. Too many responses by CSC coming back with "pending HQ review". Some new legal issues and how USCIS should adjudicate can cause long delay. Grappling and resolving issues may take long time.

Bridge financing with EB-5 money paying off existing loan used in the project should be allowed. But USCIS can argue that the existing loan should be taken on with a specific idea that EB-5 money will be used to pay off that loan. Factual question, business plan and econometric studies.

Can census tract or tracts qualify as geographic subdivisions, or only where the subdivisions constitute "physical" boundaries?

Is CSC willing to cut through the chase of multiple RFEs and orally discuss RFE issues? Decision Boards will be implemented in 2012 and might help. Vague responses from CSC is a real problem.

What are some examples of valid restructuring that constitute NCE?

Check out below article by another EB-5 practitioner on the Jan. 12th 2012 "Conversation with Mayorkas".