2/26 Stakeholder Meeting Updates

UPDATE: USCIS has posted an Executive Summary of the call.
Last week, EB-5 stakeholders enjoyed the “first of a new series of quarterly engagements” with USCIS. It’s been over a year since the last EB-5 stakeholder meeting, so this one was very substantive. I faint at reproducing everything of importance from the call, but am sharing my recording (click here to download it) for the benefit of anyone who would like to review details. Other bloggers (Mona Shah and EB-5 Insights) have also posted highlights, and IIUSA members can access an excellent article from Robert Divine. (See also H. Ron Klasko’s excellent posts on “EB-5 Stakeholders Call – What We Learned,” and “Unanswered Questions from the EB-5 Stakeholders Meeting“).

The first 23 minutes of the call feature program updates from Daniel Renaud, Deputy Associate Director of USCIS Field Operations Directorate, and Nicholas Colucci, USCIS EB-5 Program Office Chief. A few highlights:

  • Priorities: Mr. Renaud stated five goals for the EB-5 program: reduce processing times, improve filing options and reduce paperwork, update regulations to align with statute and improve initial filings, improve customer service, and solicit stakeholder input more frequently
  • Office Updates and Staffing: The EB-5 program office in Washington DC currently has 53 staff, including 20 economists and 25 adjudicators. 80% of the staff have advanced degrees, including 20 law degrees. In the “near term,” new hires (mostly adjudicators) are expected to increase the DC staff to 75, with a goal to reach about 100 staff by the end of the fiscal year. A training program has been implemented to bring adjudicators up to speed within 5 weeks of entering on duty. New hiring compensates for the loss of about 35 California Service Center personnel who had adjudicated I-526 and I-829. As of 2/14/2014, all I-924 and I-526 petitions are being adjudicated in Washington DC. A team at the California Service Center will continue to work with I-829 and I-485 through the end of the year.
  • Processing: Some I-526 petitions have already been filed through the ELIS electronic filing system, and USCIS is continuing to test this system while also unrolling a document library that can be used for EB-5 cases. USCIS prioritizes improving processing times, particularly for Form I-526, by the end of this year, though further delays are expected in the short term as new adjudicators are hired and trained. USCIS repeats its commitment to a basically FIFO system, and claims that no one type of petition can expect faster processing than others. USCIS promises to update its website shortly with I-924 processing times refreshed monthly. (The 2012 times were deleted from the USCIS RC Page the day after the call, so we’ll see if new info appears there soon.)
  • Regulations and Policy: USCIS is preparing to launch into revising EB-5 regulations to address fraud and national security issues (a priority as a result of recommendations from the Office of Inspector General’s audit report) and to generally improve program efficiency and procedures. Stakeholder feedback will be solicited through an upcoming stakeholder meeting to be announced and through the USCIS Idea Community (email to follow). USCIS is also working with the Office of Policy and Strategy to put together a comprehensive policy manual that will consolidate existing memoranda and the AFM into one policy guidance document.
  • Filing Tips: Mr. Renaud promises that filing tips will be published soon on the USCIS website, and mentions five on the call: please don’t send duplicate copies of supporting evidence; translation documents need to comply with the regulations (complete, not summary, and accompanied by translator certification that complies with the regulations); don’t provide outdated TEA letters; Regional Center I-526 petitions should include a cover letter with the name of the new commercial enterprise and the name, receipt, and ID number of the Regional Center; for I-924 applications, state in cover letter the type of approval requested: hypothetical, actual, or exemplar.

Minutes 23-50 of the call were devoted to prepared responses to stakeholder questions submitted in advance of the call. This section was handled by Robert Cox, Deputy Chief of the EB-5 Program Office. I won’t reproduce the Q&A, which was very carefully worded, but provide time references to my recording so that you can revisit topics of interest to you:

  • 23:45 Clarify types of RC applications (hypothetical and actual with exemplar), and whether a project can be approved as an actual project with deference if it is not accompanied by an exemplar I-526.
  • 25:45  How much detail does a “hypothetical” plan need to have?
  • 27:45 What is “an objective mistake of fact or law” that eliminates deference?
  • 29:15 Will USCIS accept a TEA constructed from an aggregation of census tracts from an investor, or must this be in the form of an official state designation?
  • 32:00 What is the standard for determining the geographic range of a regional center, and what kind of expansion outside the approved boundaries of the RC would be accepted?
  • 35:20 May an EB-5 new commercial enterprise invest in a non-profit job-creating enterprise?
  • 36:40 May one EB-5 investment be divided among businesses in separate TEAs?
  • 37:40 May a developer have a guaranteed return so long as the promise is not made to the investor?
  • 39:20 May Regional Centers be bought and sold?
  • 40:40 May a business that purchases assets of a previously-existing business qualify as a new commercial enterprise?
  • 43:30 What limits on use of bridge financing should investors know about?
  • 46:00 What is the legal standard for allowing EB-5 investors to gain credit for guest expenditure jobs?
  • 49:30 At the I-829 stage, what evidence will be accepted for creation of model-derived jobs?

The remainder of the call includes live Q&A. In my opinion, this is less useful since USCIS apparently instructs its people to avoid giving definitive answers off-the-cuff to call-in questions. But you’re welcome to review the recording (noting that I got briefly disconnected at 1:18 and lost 8 minutes).

USCIS clearly put a lot of work into this call, which was much appreciated. I look forward to the in-person engagement promised “in late Spring or early Summer.”

About Suzanne (www.lucidtext.com)
Suzanne Lazicki is a business plan writer, EB-5 expert, and founder of Lucid Professional Writing. Contact me at suzanne@lucidtext.com (626) 660-4030.

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