EB-5 Policy Memo Deserves an “A” – The Dawn of a New Era in EB-5 Adjudications

"After lengthy review, USCIS issued its long-awaited new EB-5 Policy Memorandum on May 30, 2013.

In our December 2012 blog we:

1)    Pointed out the need for predictability, including providing opportunity for comment before adopting new positions. USCIS gets an “A” here.

2)    Asked for a “binding preapproval process that includes robust deference to previously acceptable positions.” “A+”.

3)    Asked for “clarity on counting construction phase jobs”. We received an answer to this request but not the right one. Grade “C”.

4)    Asked USCIS to “honor the position outlined in the June 2009 Memorandum regarding material change and support for the changes articulated by AILA.”  “A-”.

5)    Honoring State TEA designation deference. “A”.

6)    Clarity regarding the bridge financing standard. “A”.

7)    Respecting industry standards on NAICS codes. “A”.

With 6 “A”s and one “C,” the Memorandum provides the clarity we need and ushers in a new era.  The removal of artificial reliance on industry NAICS codes is very helpful, and no longer requiring amendments will provide essential flexibility. The acceptance of the widely used fund model is also a big step forward, as is the clarification of the requirements for a hypothetical project. USCIS earns an A+ for stating adjudications must be based on the preponderance of the evidence and deference must be granted to prior decisions." - Bernard P. Wolfsdorf, June 24, 2013.