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EB-5 Processing & Procedures


FAQs on step-by-step procedures involved in all phases of EB-5 processing

[Q] What is the difference between RFE and NOID?

USCIS has stated:

Response: Both an RFE and NOID are notice of ineligibility. Pursuant to 8 CFR 103.2(b) and Section 10.5(a) of the Adjudicators Field Manual, an RFE may be issued when initial or additional evidence are missing. A NOID may be issued where USCIS has evidence of ineligibility or derogatory information. A NOID may also be issued based on a mandatory basis for denial.

[HOT] [Q] What is the latest OFAC license situation for Iranian EB-5 investors?

[Q] Regarding OFAC issue with Iranians, what is USCIS policy on getting an OFAC license for Iranian investors? At what stage of the EB-5 process does the license need to be acquired? Does USCIS and OFAC coordinate these policies? If so, how?

Updates:

New OFAC regs released -- read pages 84 ~ 102 related to general immigration and 100 to 101 related to EB-5 cases: http://eb-5center.com/files/OFAC_Regs.pdf

http://www.exportcompliancematters.com/2012/10/23/the-gates-have-opened-...

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USCIS has stated:

[Q] What is your thought on having to send EB-5 petitions to Lockbox address?

Definitely not good. Many problems associated with this system:

1. Takes too long to issue receipt notices.

2. Often makes mistakes in returning petitions incorrectly.

3. Often forwards the case file to wrong Service Centers.

Where CSC adjudicates all EB-5 cases, it doesn't make sense to file EB-5 cases to Lockbox.

[HOT] Is advance "pre-approval" for a RC based EB-5 project useful?

Despite what many are saying, not really, for the following reasons:

1. It takes just too long to obtain the pre-approval: 6 months or longer.

2. Even with the pre-approval, CSC is known to issue RFEs on the very project which was pre-approved, even though no aspect of the EB-5 project changed after the pre-approval was obtained.

3. In fact, USCIS representative during a recent public meeting stated that USCIS had in fact never encouraged regional centers to obtain pre-approvals! We do not agree with this statement, but USCIS can offer a revisionist version, I guess.

[HOT] What is the current approval rate of I-526s and I-829s?

As of first quarter of 2011 fiscal year, denial rates of both I-526s and I-829s are over 25% each, which is unacceptable. We hear a lot of complaints from RCs on unreasonable RFEs and inconsistencies in the adjudication all the time.

This means the real denial rates for both petitions are really higher, because some petitions are voluntarily withdrawn and refiled or abandoned.

[Q] We reside abroad. Someone told me that I should file I-526, then my family should enter the US and I-485 adjust in the US?

[Q] We reside in Japan. Someone told me that I should file I-526, and then our entire family can enter the US on tourist visas and then file I-485 adjustment of status to obtain conditional green cards? Is this recommended?

Not at all. We do not recommend this approach, not only because it can be deemed unlawful to use tourist visas to enter the US with a preconceived intent to adjust in the US, but because no one knows how long it will take to get I-526 approved, or if I-526 will ever be approved.

If you reside abroad, we almost on all cases recommend that you first obtain I-526 approval and then do consular processing through the American Embassy located in your home country.

[Q] After I submit I-526 or I-829, if I move to another U.S. address, how should I notify USCIS?

You must notify USCIS as follows, per a recent notice by USCIS:

Beginning March 15, 2011 all Change of Address, (Form AR-11) and Alien’s Change of Address, (Form AR-11 SR) will change filing locations. Now, you must file all change of address forms at the following address:

DHS/USCIS
Harrisonburg File Storage Facility
Attn: AR-11
1344 Pleasants Drive

[Q] Can my family and I enter the U.S. on tourist visas and then apply and get I-526 approved and then adjust in the U.S.?

We do not recommend this approach. First, no one can guarantee that your I-526 immigrant petition will be approved within the period of stay granted under your tourist visas. Second, it's legally risky to enter the U.S. with nonimmigrant visa but with a pre-conceived intent to immigrate.

[Q] Can an appeal of I-829 denial decision be filed with AAO or BIA?

Not unless USCIS denies I-829 and then certifies the decision. Usually, USCIS must issue NTA first, before the petitioner can "renew" the I-829 petition before the Immigration Judge, as part of the removal proceedings.

[Q] How long does it take to get a pre-approval of the EB-5 project?

Currently, around 3 months, but you never know when it comes to the CSC processing times. It could suddenly lengthen due to the increased filings.

[Q] How many examiners work on adjudicating EB-5 related cases?

As you probably know, California Service Center (CSC) is the appointed Center to handle I-526s, I-829s, I-485s based on approved I-526s, and regional center designation and amendment applications.

[Q] Can you obtain immigrant visa by submitting I-526 before son or daughter turns 21 years old?

Yes, even if the son or daughter is over 21 at the time of immigrant visa interview at the American Embassy. That is because CSPA controls.

[Q] Any potential problem or issue with using I-824 follow-to-join processing?

Be very careful doing I-824 for follow to join processing for dependents who follow to join the PA. See below Q & A from October 28, 2010 AILA-VO LIAISON QUESTIONS & ANSWERS. It appears that there are serious issues with I-824 processing.

[Q] Does obtaining a "pre-approval" for the underlying EB-5 project speed up the I-526 review process?

Not really. Regional Centers marketing may say so, but the fact is USCIS can "pre-approve" the underlying EB-5 project and then still raise questions about the project when they are adjudicating I-526s. This raises a bona fide question which is: Why get the pre-approval then? This is another aspect in which the USCIS adjudication is pretty uneven and inconsistent for EB-5 cases.

[Q] Why can't I check status of I-829 petition using I-829 receipt number through Case Status Check feature at www.uscis.gov?

Because USCIS computer system is not advanced. USCIS says it is working to make this possible.