Bernard P. Wolfsdorf on EB-5 Program Updates

"On May 6, 2013 U.S. Citizenship and Immigration Services (USCIS) opened its new Washington, D.C. EB-5 Program Office, staffed by new GS-14 high-level economists.  These economists will adjudicate all EB-5 filings, starting with new I-924 applications to register Regional Centers.  The current Director of the Vermont Service Center, Mr. Daniel Renaud, has accepted the position of the Acting EB-5 Program Chief.  His Deputy, Mr. Robert Cox, will be Acting EB-5 Deputy Chief.

Presently, adjudications for new I-924 applications and I-526 petitions are taking approximately 18 months and 12 months, respectively.  Because the new EB-5 office will be primarily staffed by new hires, and because it is estimated that training an EB-5 adjudicator can take several months, we do not expect any significant improvement in adjudication times over the next few months of concurrent adjudications at both the California Service Center of USCIS  and the new Washington office.  Nonetheless, a few months thereafter we expect to see considerable improvement in EB-5 adjudication times. On the positive side we did get an EB-5 Regional Center case approved in just three weeks today.

On the positive side, several new EB-5 endeavors are being implemented by USCIS, including:

  • EB-5 filings online through ELIS should be implemented on a voluntary basis by the Summer of 2013; and
  • USCIS has made a commitment to implement its deference policy, and has indicated that for any situation in which deference is not applied, the project developer and/or Regional Center will be provided an opportunity to present evidence in person and discuss the decision.  This is a particularity valuable development as USCIS has been requesting an inordinate amount of verifiable detail on hypothetical projects which, by definition, are hypothetical, thus creating a “Catch-22” in which one is being asked to provide verifiable details on a hypothetical situation.

Most importantly, a “new” USCIS Guidance Memo is likely to be published within the next few months.  The Memo is expected to include several key changes to EB-5 adjudications, including:

  • Confirmation that EB-5 capital can replace bridge financingprovided the deal documents show EB-5 money was anticipated from the beginning, or, if the capital that was originally expected became unavailable, and EB-5 capital is now needed to replace the bridge financing.  In both situations USCIS is likely to find that there is a nexus between the capital invested and the jobs that are created;
  • Clarification that Regional Center business plans need not meet all of the requirements outlined in Matter of Ho in every case.  At current, USCIS demands that every Regional Center project’s business plan meet every business plan requirement as listed in Matter of Ho; and
  • Clarification of USCIS policies concerning the use of precise NAICS codes in regards to job creation.  At current, USCIS wants to see a “direct nexus” and proof that the new jobs will be created within the specific NAICS code of the project.

In addition to these positive developments, Section 2319 of the proposed Border Security, Economic Opportunity, and Immigration Modernization Act, S.744 (2013) (“BSEOIMA”) would make the Regional Center program permanent, and Section 2307 would remove derivatives from the annual limit of 10,000 EB-5 immigrant visas, thereby more than doubling the number of visas available to principal investors.  In addition, Senator Leahy’s office has introduced new amendments to the legislation that significantly improve the program.  It is likely the Senate Judiciary Committee will vote on BSEOIMA by the end of May, and send it for a full Senate vote by Summer, 2013, so there is indeed much to look forward to in the coming months." - May 8, 2013.