October 20, 2014

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October 17, 2014

Update on EB-5 Processing from United States Citizenship and Immigration Services (USCIS)

Kate KalmykovAlissa Brodie and I attended the American Immigration Lawyers’ Association Mexico City EB-5 Conference, “Show Me the Jobs,” on May 2, 2013 in Miami, Florida.  The lunch program of the conference featured guest speaker, Rob Silvers, Senior Counselor to USCIS Director, Alejandro Mayorkas.  Mr. Silvers addressed the conference, giving an update on the EB-5 program administered by USCIS.

EB-5 Program Office in Washington, DC

Mr. Silvers discussed the new EB-5 program office in Washington, DC.  The new Acting Chief of EB-5 is Dan Renaud and the Acting Deputy Chief is Robert Cox.  USCIS has realigned the California Service Center’s EB-5 group to report to the Washington, DC program office.  As of Monday, April 29, 2013, the new office is up and running at USCIS headquarters in Washington, DC.  Hiring efforts are in full force.  USCIS has hired new economist adjudicators, who will assist in the adjudication of I-924 applications and I-526 petitions.  Adjudications will begin in DC this week.  USCIS plans first to transition I-924 applications to DC, then I-526 petitions and lastly I-829 petitions.  This is the first government office created in just 5 months, a major accomplishment for USCIS.

Procedural Streamlining

Mr. Silvers indicated that USCIS is very interested in procedurally streamlining EB-5 petitions.  First, USCIS is planning to allow electronic filing of Form I-526 later this year.  This would allow investors to electronically file Form I-526 and pay the filing fee online, which gives investors an immediate receipt number and priority date.  Investors would then file the supporting documents for the petition with USCIS using the electronic filing receipt.

USCIS also is considering developing a repository of project related documents for EB-5 petitions.  Each time investors file I-526 petitions, he or she must file all of the project related documents establishing EB-5 eligibility.  To cut down on the amount of paperwork filed with USCIS, it is considering a repository that would allow investors to indicate the project in which he or she invested, and then simply file his or her source of funds documents with USCIS.  USCIS would then use the documents in the repository to review project materials.

In addition, Mr. Silvers indicated that USCIS is very interested in receiving stakeholder feedback on the following 4 procedural issues:

  • When is a regional center amendment required?  USCIS would like to engage a discussion on this point to provide guidance to stakeholders as to when a regional center amendment is required versus permitted.

  • When should USCIS give deference to prior EB-5 adjudications?  USCIS would like suggestions for when to apply their deference policy.  Also, the new EB-5 decision board will be used prior to any adverse EB-5 decisions.

  • When should USCIS allow hypothetical I-924 projects?  USCIS would like to engage a discussion on general I-924 proposals.

  • Should USCIS have customer service agents for EB-5 petitions?  USCIS is considering specific EB-5 customer service agents to form long-term relationships with investors and regional centers.

Policy Issues

Mr. Silvers also gave an update on the status of the draft USCIS EB-5 Policy Memorandum.  The Service is still refining the Memorandum, but it is expected to be released shortly to stakeholders.

Mr. Silvers also stated that not all EB-5 business plans must comport with Matter of Ho in the regional center application process.  Instead, USCIS applies the “totality of the circumstances” test to business plans.  Although we don’t always see this in adjudications, hopefully we will see a loosening of requirements for EB-5 business plans in the I-924 context.

Additionally, Mr. Silvers confirmed that the use of bridge financing in the EB-5 context is perfectly acceptable so long as there is a nexus to the job creating activity.  The easiest case for USCIS is where there is documentation that the bridge financing was issued in anticipation of using EB-5 financing.  Such documentation is normally found in the bridge loan.  However, Mr. Silvers confirmed this is not strictly necessary.  Also, if the bridge loan was to be taken out by other non-EB-5 financing, but then the alternative financing falls through, the bridge can be taken out using EB-5 financing.  Mr. Silvers indicated this probably would not be OK if the EB-5 was coming in 5 years later, but that in general, bridge financing is OK.  USCIS understands and is receptive to bridge financing.

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About this Author

Jennifer Hermansky, Immigration Attorney, Greenberg Traurig Law Firm
Associate

Jennifer Hermansky focuses her immigration practice on both employment-based and family-based immigration. Jennifer has experience serving health care, pharmaceutical, and real estate industries, as well as entrepreneurs, scientists and researchers in scientific communities.  She represents clients in a wide-range of employment based immigrant and non-immigrant visa matters including students, professionals, managers and executives, artists and entertainers, treaty investors, individuals of extraordinary ability and immigrant investors.

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