2012/01/23 -- USCIS Stakeholders EB-5 Teleconference

Our informal notes of the teleconference:

USCIS will defer to state's determination of geographic area regarding TEA. State Dept of Labor will be deferred to, if and as long as that particular authority is delegated by the state per CFR regulations. See CFR 204.6. State must notify USCIS what body of state has authority to issue TEA designations.

Each I-526 must show TEA designation at the time of investment or I-526 filing, whichever is earlier. See Dec 11, 2009 memo.

USCIS has to review the issue of what happens to TEA for multi years project and spending and get back. USCIS asked for a specific email so they can decide and answer.

Can a single census tract be considered a geographic area? USCIS said it would answer this question later on but avoided answering this question.

What data should states use to determine TEA? Census 2000 or more updated data? Sasha Haskell said that "American survey data" would be appropriate.

Economic analysis issues raised by USCIS economists are the reasons why CSC is delaying RC applications. Several weeks is the best estimate for expected resolution.

I-924 requires the applicant to define the geographic area and can go outside their city area.

Executive summary of the meeting will be provided after the meeting.

Sasha Haskell statements:

Disclaimer language repeated.

Went through I-924, I-526 and I-829 receipts, approval and denial statistics for each year.

Number of IVs issued divided by 2.5 equals estimate number of investors.

Customer service issues. Lack of email responses and "pending HQ review" problems. CSC mailbox administered by trained supervisor. Two to three days time frame required but may vary, depending on HQ involvement. Direct email inquiries available for I-924 cases. 127 I-924 inquiries received since Sep 2011.

Training and staff info: Same project docs and info needed for all investors of one RC project? At this time, "yes", but may change later as the CSC system changes. Summer of 2010 had one team, but now have 4 teams who have been trained. USCIS economists are also included in the training. USCIS identified issues concerning "high-filing" RCs and have assigned certain examiners to work on these "high-filing" RCs.

CPR Issues: I-829 receipt notice extends 1 year after CPR expiration date. I-551 stamp limited up to next Masters Hearing date of removal proceedings, not standard 1 year, IF the investor and family members are in the NTA proceedings after I-829 denial. Therefore, they have to coordinate trips overseas accordingly.

I-924 processing time not available at this point. Holding certain I-924 cases for economic analysis given by USCIS economists, but expect to see those cases be moved shortly. These RCs will be given another opportunity to submit updated economic studies, etc.

Some common reasons for I-829 denials may be given in future.

Where an exemplar project is approved via I-924 amendment, will the same project be looked again at the time of I-526 filing? I-924 should show how jobs are created in each industry. September and Dec 2009 memos specified exemplar project filings. Relaxed standard in I-924 exemplar setting vs. more strict review standard during I-526 filing review stage is the reason why the "pre-approved" project may be re-reviewed during I-526 review stage. This standard of review where an EB-5 project has been "pre-approved" will be addressed in the newly-proposed "shovel-ready" project review.

What if EB-5 IV numbers exceed the 10,000? If there is any over subscription, then there will be waiting line established based on priority dates.

Regional Centers Issues:

Appropriate geographic area, organizational structure, etc. can be amended via I-924.

Part 3 of I-924 requires identifications of various entities.

Can I-829 status be checked online? Marriage fraud system is a DOS system implemented 25 years ago. Marriage fraud system contains family based I-751s as well as I-829s. Emails can be sent if I-829 case is pending outside the pending time periods.

Change in industry code: Should include all info on new I-924, including biz plan, economic impact, job-creation. Industry codes should be as specific as possible, using as many digits as possible and corresponding multipliers.

Change in geographic scope: Initial docs plus valid economic impact in the entire clearly defined region, including commuting trends and 2007 census data and market conditions and multipliers.

Change in economic impact modeling: Initial docs plus revised economic impact analysis and biz plan.

EB-5 Basic Program: Capital can be deployed in one single NCE.

I-9 Issues reg. I-829s: Will review and can request other info.

RC IV numbers can exceed 3,000.

Other questions:

What if particular states do not understand TEAs? Talk to the specific state. USCIS does not get into middle of TEA designation process done by the state.

Why don't pre-approval docs honored by CSC examiners where there is no fraud or material change? Sasha said more transparent process being worked on.

Passive investment is not allowed since 100% of capital must be utilized in job-creating activity.

Joint venture may not qualify as a NCE because definition says "wholly-owned" subsidiaries.

Will employer be allowed to substitute non-qualifying employees for direct jobs context? Case by case basis.

Sasha states that Bureau of Labor Statistics recommend that 12 months annualized data be used, not seasonable data, according to Sasha.

Definition of "shovel-ready" project will be given via form amendment.

State wide RC approval still a possibility? Geographic scope analyzed within the application, but this is possible.