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.