U.S.C.I.S. EB-5 Quarterly Stakeholder Engagement Yields Some Answers to EB-5 ProcessingBy Alan Lee, Esq.† In the quarterly EB-5 immigrant investor program stakeholders meeting of September 15, 2011, U.S.C.I.S. said that there are currently 173 approved regional centers operating in 40 states, including the District of Columbia and Guam; that in fiscal year (FY) 2011 (10/1/10-9/30/11), it received 176 initial regional center proposal filings and 73 amended ones; that for the first three-quarters of FY-2011, it received 2608 I-526 and 1753 I-829 petitions, and approved 82% of the I-526's and 93% of the I-829's. The total visa usage for FY-2011 as of 9/12/11 was 3706, far below the 10,000 annual limit. [Note that although regional center programs have an allotment of 3,000 visas annually, USCIS interpretation allows regional service center investors to compete with individual investors for the remaining 7,000 visas.] Much of the meeting was devoted to regional center issues, with emphasis on the I-924 (Application for Regional Center Under the Immigrant Investor Pilot Program) and I-924A (Supplement to Form I-924) forms to create and amend regional investment center filings, which might not be of much interest to the average reader. So the rest of the article will discuss some of the other topics of the meeting. U.S.C.I.S. Director Alejandro Mayorkas addressed the meeting by saying that the EB-5 program is a high priority with CIS; that direct communication with CIS would be available the following Tuesday; that a decision board to review EB-5 cases would soon be implemented; that there would be more regional adjudicators, a full-time economist, three business analysts, and maybe more later; that an overarching memo was due to address some EB-5 issues, but would not come out as yet since there was need for more teleconferences. He quashed hopes of many that premium processing for the EB-5 program would soon be forthcoming stating that it required OMB (Office of Management and Budget) approval and a new form. He said that I-924's would be the first to be premium processed, and it would come later for I-526 petitions. In answer to a later question as to what was the time frame for premium processing service, Rosemary Melville, Director for the California Service Center which processes EB-5 cases, said that it was a difficult situation; that CIS was doing everything it could to expedite the process, but could not specify the time frame. She also observed that visa numbers must be obtained for all families (not just one for the entire family); that the California Service Center had a goal of finalizing responses to requests for further evidence (RFE's) in 30 days; that I-829 filings could not be tracked as they were on MFAS ( Marriage Fraud Amendment System); that CIS is trying to update processing times for more accuracy and that stakeholders could also inquire to the EB-5 mailbox; and that oversight for RFE's was in the form of supervisory review of denials. CIS handout materials for the meeting indicated that an I-526 petitioner and/or attorney or accredited representative of record could bring to the attention of the agency any EB-5 case decision or notice that appeared to be in gross error by sending an inquiry to the EB-5 general mailbox at "USCIS.ImmigrantInvestorProgram@dhs.gov." The handouts also gave the tip that U.S.C.I.S. encourages I-526 petitioners to use tab dividers with the tabs at the bottom of the pages or also using colored paper dividers, and clarified that in removing conditions in the I-829 form, U.S.C.I.S. was determining whether the alien had invested - not necessarily spent - the requisite capital in the enterprise. A large point was also clarified by Director Mayorkas when asked about changes in determining what qualifies as a TEA (targeted employment area for which an investment of $500,000 can qualify instead of $1 million). The question had to do with the authority of any municipality instead of the state itself to determine that a specific area qualified as a TEA. He remarked that there was a delegation of authority from the governor to the municipality; that one state provided a brief that a municipality is equal to a body of state government; that CIS agreed and so the logic goes to any state. As the meeting was focused on the creation of regional centers, there were many issues left to be answered in future conferences/ teleconferences with U.S.C.I.S.
† The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004. |
Copyright © 2003-2012 Alan Lee,
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