The “Shovel-ready” Concept

Proposed Step 1 in the “Proposed Changes to USCIS’s Processing of EB-5 Cases” (comment period ending this Friday 6/17) is “Accelerated and Premium Processing of ‘Shovel-Ready’ Cases.” The EB-5 community has been pressing for a long time for a premium processing option, and for a long time USCIS has said no because if they did everyone would use it and they don’t have the staff to accelerate everyone’s cases.  This new proposal suggests a way to select just a portion of cases worthy of expedite: the “shovel-ready” standard.  If your I-924 petition is based on a project that is “shovel-ready,” defined as “business projects that are sufficiently developed to support the immediate filing of actual I-526 petitions from participating investors,” it will enjoy hugely shortened processing times (as short as 15 days versus 5 months).

I have a few concerns about that word “shovel-ready” and its definition.

• USCIS shouldn’t create a situation in which as-yet-unauthorized regional centers would be forced to promote as-yet-unapproved projects and rush investor and source of funds screening – which would be inevitable if USCIS defines the term to necessitate “immediate filing” of actual I-526 petitions from participating investors the moment I-924 approval is received.
• If “immediate filing of I-526” isn’t a reasonable definition for “shovel-ready,” then what is? We do need USCIS to give a strict definition, or for sure nearly all RC applications will claim that their projects are shovel-ready and we’ll be back to square one with premium processing impossible because everyone is trying to take advantage of it.
• USCIS might learn from the history of the “shovel-ready” concept as a standard for privileging applications for stimulus funding. Sec. 1602 of the American Recovery and Reinvestment Act of 2009 Division A Title XVI provides a definition of the standard that President Obama and others have referred to using the term “shovel-ready”: “In using funds made available in this Act for infrastructure investment, recipients shall give preference to activities that can be started and completed expeditiously, including a goal of using at least 50 percent of the funds for activities that can be initiated not later than 120 days after the date of the enactment of this Act.” I feel that “120 day” standard might be reasonable in the EB-5 context as well — definitely more sensible than “immediately” anyway. However the term is still slippery enough that USCIS may find itself with President Obama who saw stimulus projects starting to take off over 16 months after the Act was enacted and who joked yesterday at his Council on Jobs and Competitiveness that “Shovel-ready was not as … uh .. shovel-ready as we expected.”
• The “actual (shovel-ready)” and “actual (exemplar)” distinction makes some sense only at the I-924 stage, not at the I-526 stage. The I-526 petition is being filed by an EB-5 investor — of course at that point the project is ready to receive EB-5 investment! If not the petition will get denied, not just demoted. By the “shovel-ready” standard, all approvable I-526 would qualify for premium processing.

The deadline for comment on the proposed changes is this Friday, and I’m still struggling with what to say. It’s easy to point out problems, but what constructive suggestion can I make? I sure don’t want to kill the impulse to improve procedures and shorten processing times, so I don’t want to tell USCIS what’s wrong with its proposal if I can’t suggest better options.