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Overview of Latest August 2015 EB-5 Stakeholders Meeting with USCIS

On Aug. 13, 2015, USCIS held a stakeholder engagement for individuals interested in the EB-5 program in Los Angeles and via conference call. 

The engagement was attended by several leaders of the Immigrant Investor Program Office (IPO) of USCIS (including its Chief, Nicholas Colucci), who all emphasized USCIS’ prioritization on the integrity of the EB-5 program as well as its potential to create jobs in the U.S. In FY 2014, USCIS received nearly 11,000 I-526 Petitions, representing $5.5 billion in future potential investment. Already in the first three quarters of FY 2015 (Oct. 1, 2014 – June 30, 2015), there have been significant increases in the numbers of I-526 Petitions, I-829 Petitions, and I-924 Applications submitted to USCIS, likely due at least in part to the upcoming Regional Center program Sept. 30, 2015 expiration date.

Given the high rate of incoming cases, processing times are still not where the IPO or stakeholders would like them to be, currently estimated at:

  • I-526 Petitions: 13.4 months

  • I-829 Petitions: 13.6 months

  • I-924 Applications: 11.5 months

As the IPO noted, adjudication times can vary for several reasons, including if a case’s expedite request is approved. In order to improve the rate of adjudication overall, the IPO continues to increase its staff members, hiring experts in law, finance, business, economics, and banking.

The IPO representatives discussed several other topics during the engagement, highlights of which include:

Improved Communication with Stakeholders: The IPO strongly welcomed comments on its Aug. 10, 2015 Draft Policy Memo and has additional events planned and new strategies in place intended to provide good customer service and transparency.

Increased Regional Center Compliance: The IPO is developing a standalone team specifically dedicated to promoting compliance within the Regional Center industry, and plans to engage in additional activities to clarify regulations and ensure authenticity.

Clarification on Deference re: I-526 Petitions and RFEs: The IPO indicated that linking petitions to the same, approved NCE will create adjudication efficiency. Recommendations were provided on filing exemplar I-526 Petitions and submitting additional documents for related cases affected by an RFE.

Clarification on Job Creation Timing Requirements: In general, USCIS follows the job creation policy as outlined in its Dec. 11, 2009 Memo and still tends to expect job creation within 2.5 years of the Form I-526 adjudication, though it was stated at the engagement that this is not a rule. The IPO will continue to monitor the effect of immigrant visa retrogression on this issue.

Clarification on Sustainment of Investment: Comments on this issue in response to the Aug. 10, 2015 Draft Policy Memo were encouraged, as there were many questions regarding the period required for sustainment, especially when I-829s can take several months to be adjudicated.

Clarification on Single New Commercial Enterprise: The IPO confirmed that the EB-5 investment must be sustained in a single commercial enterprise, a requirement that will be examined at the I-829 stage.

Clarification on Material Change: The IPO indicated that the policy on material changes to a Form I-526 petition since the May 30, 2013 Memo has not changed: if there are material changes any time after filing while still pending, the petition cannot be approved.

Mr. Colucci also discussed the IPO’s positive response to the recently released Government Accountability Office (GAO) report and his recent meetings with local officials and U.S. government employees in China.

The Aug. 13 engagement was useful, although stakeholders and IPO representatives alike continue to wait for further information on the anticipated Regional Center legislation. As the status of the legislation becomes clearer, USCIS will provide guidance in the coming weeks. 

©2022 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume V, Number 231
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2018 Go To Thought Leader AwardGreenberg Traurig’s Immigration & Compliance Practice represents businesses, organizations, and individuals from around the world on a wide range of immigration matters and visa needs.

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