9/15 Stakeholder Meeting

In case you missed the 9/15/11 stakeholder meeting with USCIS, you can get a copy of the presentation here, and listen to audio that I recorded today by clicking on the media player at the base of this post.

The Q&A period included a number of interesting technical points. The panelists gave advice and made statements more generously then they usually do, but keep in mind that “it depends” is probably really the correct answer to most of the questions, even if the panel was too nice this time to fall back on that response. I’d caution everyone to keep context in mind and not latch on to sentences from a conference call as the final word on any issue. For example, I doubt you can file an I-829 showing that not all EB-5 investment in a new commercial enterprise has been actually put to use in any project, with the argument “remember that call when Kevin Cummins said…” Or count on “but that one time Sasha Haskell said…” when you file an amendment to industries by “just filling out the form”  and then get an RFE pointing out that you failed to provide sufficient detail to show in verifiable detail how capital investment offerings in the requested industry will create jobs.

The presentation includes one extremely useful section: a list of the common reasons for Requests For Evidence and denials on I-924 cases. You can find this on slides 14-17 of the presentation, and I’ve also reproduced the content on my page of advice for applicants.  The list really captures the few points I see repeated over and over on RFEs.  It’s not hard to avoid an RFE; read this list and get your application right the first time.

Also note the topic of appropriate geographic areas for Regional Centers. The current I-924 form doesn’t really ask for anything on geographic area beyond a map with borders marked, and nothing prevents applicants from doing what, in fact, they do: apply for the location of their proposed project(s) plus as many surrounding counties as they dare — either because they might ever do something in those areas or (usually) to look big and assist marketing efforts. And a review of recently-approved centers shows that applicants are increasingly ambitious, with more and more full state and even multi-state centers approved. Probably this doesn’t matter since RC areas aren’t exclusive, but it isn’t what Congress had in mind when it specified that “A Regional Center may be granted jurisdiction over a limited geographic area for the purpose of concentrating pooled investment in defined economic zones.” I haven’t heard the issue raised much before, but now USCIS may be planning to crack down in this area.  According to slide 35 of the presentation:
–A Regional Center must demonstrate in the Form I-924 that its activities will focus on the requested geographic region, and not simply on isolated and unrelated areas within the region
–It may be more appropriate for the Regional Center to initially request a geographic area that is in keeping with the economic impacts of the existing project, and then subsequently file an amendment request for an expanded geographic area as the details and location of future projects become known
I’m hoping that the forth-coming revised I-924 Form will offer more guidance on appropriate geographic areas and how exactly USCIS wants applicants to demonstrate the geographic focus of their activities.

This conference call also impressed me that the leadership at least is serious about receiving feedback through the EB-5 inquiry mailbox (for case-specific issues outside the new direct email communication) and the Office of Public Engagement email address (for policy issues).  It seems that problems reported (and documented) in emails to OPE have actually been reviewed even by Director Mayorkas and used in training adjudicators, and that problems (for example in Regional Center approval letters) have actually been dealt with following emails to the EB-5 inquiry email address. And of course there’s the new direct email communication for all pending I-924 cases.

Audio recording of the 9/15 stakeholder meeting:

Conversation with Director Mayorkas

Today’s Conversation with Director Mayorkas proved to be very interesting. I liked the forum — an open conversation with 25 attendees chosen on a first-come-first-serve basis. We heard some familiar voices and familiar soapboxing, but generally the meeting format allowed for genuine discussion and for extended follow-up and interaction on important issues. Director Mayorkas once again came out looking good — knowledgeable about the program, pro-active, serious, sympathetic, and sensible. No issues were resolved in the context of this discussion, but a few noteworthy items:

• The Director chose to make EB-5 the topic of his first “Conversation” because it is of high importance to the country and a high priority for USCIS.
• “Premium processing” for EB-5 is a goal that will take a lot of time to implement (involving creation of new forms, OMB clearance, and a Federal Registry posting). This process is being accelerated as much as possible, and in the meantime the Director is taking steps for more immediate improvement through seeking ways to expedite processing outside of premium processing. These steps include implementing direct communication with adjudicators, hiring new staff including an economist and business analysts, and gathering input from the community on current problems for use in training adjudicators.
• USCIS will provide a response to the AILA EB-5 Committee questions “as fast as possible,” but this will take time. The Director noted that there isn’t unanimity on these issues even among EB-5 stakeholders present.
• USCIS is finalizing a revised “overarching” policy memo that will address issues that have arisen over previous memos and incorporate feedback and questions from stakeholders at this and future meetings. Items addressed will include the issue of child protection for EB-5 investor dependents in case I-526 has to be refiled.
• USCIS is changing the formula for calculating the I-526 and I-829 processing times so that they better reflect actual average times (time to completion rather than just time to the adjudicator’s desk).

Most of the meeting time was given to participants and their opinions and suggestions. The group united in calling for increased consistency, and divided on whether USCIS should be more or less vigilant. Here are a few minutes of audio from what I consider a highlight of the call, including the most thrilling for-against more regulation exchange and the best organizational suggestion (from about 24 minutes in):

Conversation with Director Mayorkas and Processing Changes Update

Today I listened in on the first teleconference in the “Conversations with the Director” series focusing on Opportunities for Business Entrepreneurs within the U.S. Immigration System. Director Mayorkas participated the call, along with representatives from the Office of Policy and Strategy, Service Center Operations, and Office of Chief Counsel. The call included almost two hours of public Q&A, largely focusing on the L-1, E-2, and H1-b programs. It proved mainly a forum for the public to air concerns about adjudication problems, and for the leadership to listen sympathetically and say they’d look into it. A few points of interest for the EB-5 community:

Status of EB-5 Processing Changes. Director Mayorkas provided the following update:

• USCIS has finished reviewing 177 pages of comments on the proposed processing changes
• USCIS will publish a final reformed process “in the next few weeks”
• In September, USCIS will implement one of the proposed changes: direct communication with the adjudicative team.
• USCIS is moving forward “as quickly as possible” on implementing premium processing, but this will take time. USCIS is currently revising its proposal, and there will also need to be  significant operational steps including revising the forms and Federal Register changes before premium processing will be a reality.

Adjudicator Training. The leadership is undertaking adjudicator training in an attempt to address problems and inconsistencies, and several callers were encouraged to send their problem RFEs to the Office of Public Engagement (public.engagement@dhs.gov) for use in the training.

6/30 EB-5 Stakeholders Meeting

The printed materials from the 6/30 EB-5 Stakeholder’s Meeting were re-posted yesterday on the USCIS website with no revision. Click here for the EB-5 Presentation 063011 Slides and June 2011 Stakeholder Meeting Q&A. I’m also posting my recording of the second half of the meeting:

EB-5 gossip from Washington DC

The IIUSA EB-5 conference that I attended today in Washington DC was very interesting, useful, and depressing. Many EB-5 luminaries were there, as speakers  and in the audience, and though we gathered to advocate for the EB-5 program the event was more pity party than rally. I heard this message: that EB-5 has wonderful promise for businesses, immigrants, and the American economy but is endangered by the carelessness, caprice, inconsistencies, and irresponsibility of USCIS.

I particularly appreciated the panel including Robert C. Divine, H. Ronald Klasko, and Stephen Yale-Loehr, who together have no rival in knowledge of the EB-5 program past and present. A few interesting tidbits from their presentation:

• According to a recent AILA EB-5 Committee call with Director Mayorkas, CIS is hiring additional staff with professional backgrounds relevant to EB-5 including economists, business analysts, and economic development specialists.
• The call also revealed that “in a week or two” the service will be publishing for comment a proposed new review process for I-924 forms and exemplar I-526 petitions. According to this new process, instead of issuing a written RFE the adjudicator would issue a “hearing notice” for a face-to-face interview with the applicant.
• In the last six months these attorneys have been seeing RFEs they never saw before, particularly related to source of funds. They also reported several instances of RFEs that seemed to suggest that the adjudicator hadn’t read the petition. The panel speculated that this might be due to the recent influx of new adjudicators at USCIS, the bent of the adjudicator training materials toward emphasizing bases for RFEs and denials, and possibly some internal evidence of fraud in the program inspiring increased scrutiny. AILA, by the way, has pointedly reposted a 1/6/05 memo by USCIS Director of Service Center Operations, Fujie O. Ohata, providing guidance to service centers limiting the use of requests for evidence not supported by the INA, the regulations, or form instructions.

The panel discussions on SEC issues and economic analysis were also very interesting, and left me as usual with the impression that most marketing strategies and economic analyses out there are severely flawed. I’m always seeing marketers and analyses doing just the things that these experts say one shouldn’t do, or omitting what’s said to be essential, and I don’t know how to interpret this. Am I just running into diversity of opinion, or are a lot of big mistakes in fact being made out there? If even we practitioners can’t agree on what works, what can we expect from USCIS adjudicators? I worry particularly about economic analyses because so much depends on them. Businesses will have huge headaches and families will get deported if the I-829 stage arrives and it’s not clear how to apply and back up the job counts projected by the economist. I would have loved to hear the economists speak a few more hours and take questions from the audience on how to properly apply the various methodologies in specific cases.

I left the conference feeling informed and saddened, and to cheer myself up finished the day with a pilgrimage to the Bureau of Labor Statistics, the government agency that makes me proud to be an American taxpayer.