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EB-5 News, Law & Developments
Timely news in EB-5 and related areas all in one place!
"Entrepreneurs in Residence" Initiative
The EB-5 practitioners are waiting for one of the following to take place:
1. Upcoming USCIS memo revising (hopefully in a good way) previous EB-5 guidance memo, especially Dec. 11, 2009 Neufeld Memo and answering or confirming some pressing EB-5 issues.
2. Implementation more procedural changes proposed -- but most of them have not been implemented, and we don't know when and if ever. At this point, there has been a lot of exciting talk but no real action, except for allowing direct email communication for I-924 regional center designation application or amendment application.
3. Making EB-5 Regional Center Program permanent before the expiration date of Sep 30, 2012.
Until one of the above occurs, there will not any big news.
Good post below on another perspective on the state of USCIS' ability or attitude on the EB-5 Program.
It's a grim picture on whether the EB-5 Program will really improve.
This rule proposes requirements and procedures for special determinations on the applications and petitions of qualifying alien investors whose employment-creation immigrant petitions were approved by the former Immigration and Naturalization Service (INS) after January 1, 1995 and before August 31, 1998. This rule would implement provisions of the 21st Century Department of Justice Appropriations Authorization Act.
This shows you how long any rule-making process takes. I wonder what percentage of those stranded EB-5 investors are still hanging around?
Enjoy. The effort to make the EB-5 permanent is on the way. We believe, at minimum, the EB-5 RC Program will be extended for 3 or 5 years; and there is a decent chance that the RC Program will be made permanent which will give an impression that the U.S. is really serious about its EB-5 Program.
Director Mayorkas has stated that USCIS has NOT yet confirmed or decided on the following issues and will decide "as soon as possible". Many EB-5 practitioners were expecting that answers to these questions would be answered by Sep 15, 2011, but it does not seem to be the case. Shucks.
1. USCIS will not question each state's TEA designation letter.
2. Job-creation requirement applies to the New Commercial Enterprise, not individual investors whose responsibility is only to invest in the NCE which will use the capital investments by the investors to create requisite jobs.
3. Pre-approval for a project is binding on USCIS examiners as long as the project documents submitted with I-526s are "identical".
While the White House keeps on saying that cumbersome regulations must be done away to help spur job-creation, many EB-5 experts do not see USCIS changing EB-5 regulations that are hyper-technical and do not reflect the real business standards or practices. Many EB-5 practitioners would not be surprised seeing no changes from USCIS, the agency that unabashedly believes in "hyper-technical" requirements. As far as they are concerned, it's all talk and no action.
Check out USCIS' Aug 10th 2011 meeting summary with AILA on issues discussed. We are posting this in the News section because the summary contains only the issues USCIS discussed and nothing has been confirmed.
It's absolutely amazing to many EB-5 practitioners that these issues are being discussed so late (now), or that they are being discussed at all, because the answers should be obvious: what EB-5 statutes and regulations specifically do not prohibit and are consistent with US business practices or standards should be permitted to serve the main objective of the EB-5 Program which is to create jobs and help the U.S. economy!
allowing direct communication with the adjudication team (on what kinds of EB-5 cases will be revealed by Sep 15th, we presume), followed by other processing changes such as premium processing, but the premium processing will in all likelihood not take place for long time because it will take more adequately-trained examiners to implement the premium processing system. We do not believe the premium processing will be available, at earliest, until end of this year. We believe CSC has been busy internally making changes to accomodate the direct communication, probably with the attorney of record (perhaps regional centers as well).
[HOT] A recent NY Times article on Chinese investment in U.S. assets and EB-5 has linked our website to the "EB-5" word link in their article
Go to the 7th from the bottom paragraph to click the link to "EB-5" word. I guess the writer felt that our website contained pretty good information on EB-5 law. Thanks Mr. Kirk Semple (the writer) or probably some NY staff or intern who was given the assignment to link websites to key words.
A relevant article by another EB-5 practitioner discussing another confusing written Q & A statement from USCIS:
Are we supposed to take the above answer seriously? We looked at the INA 216(A) and 8 CFR 216.6(c)(iv) cited by them and this is what it says. INA 216(A) really says nothing on this issue, and 8 CFR 216.6(c)(iv) says:
(iv) The alien created or can be expected to create within a reasonable period of time ten full-time jobs to qualifying employees. In the case of a "troubled business" as defined in 8 CFR 204.6(j)(4)(ii) , the alien maintained the number of existing employees at no less than the pre-investment level for the previous two years.
Center for Immigration Studies is lauding AAO's track record for consistently denying immigration appeals cases. See: http://www.cis.org/north/aao-box-scores
In particular, for EB-5 cases, EB-5 investors are batting zero out of 50 appeals. See below content:
Immigrant Investors. There were 42 dismissals, four withdrawals by the petitioners, three remands, and one moot case. No appeals were sustained. In about three-quarters of the cases lawyers were involved, but not very successfully. There were only 49 decisions in this category in 2009, so the last one in 2008 was added to bring the total to 50.
If that's the case, how come USCIS is not sensitive to the fact that EB-5 investors truly help the US economy during recession. We hear more and more Chinese EB-5 investors and Chinese Emigration Consultants are unhappy that many Regional Centers appear to be just trying to make quick money off Chinese EB-5 investors without giving enough control and protection to their needs.
Someone from the Center for Immigration Studies wrote an article titled "USCIS Hails More Permissive Handling of EB-5 Alien Investor Program". You can read it for yourself at:
I wish the author had selected a more appropriate title for his article because many EB-5 practitioners are reporting these days a tougher, rather than permissive, handling of EB-5 cases by USCIS. From what we hear, USCIS is definitely not handling EB-5 cases more permissively. We also would like to point out several inaccurate statements or assumptions in the article about the EB-5 Program.
Inaccurate statement 1: