EB-5 Timing Issues
October 22, 2015 Leave a comment
See my updated versions of this post EB-5 Timing Issues: Not a Fast Track (January 12, 2016) and EB-5 Timing Issues and Visa Wait: Process and Data (October 13, 2017)
I-924A Reminder, Processing Times, New RCs
October 19, 2015 Leave a comment
I-924A Reminders
As Regional Centers prepare Form I-924A annual report filings (due December 29th), here are a few points to keep in mind:
- Use the I-924A Form and Instructions and the filing address posted on the USCIS website. For filing tips, refer to the Questions and Answers Form I-924A from 2011 and the September 17, 2015 engagement on Form I-924A (recording here).
- Your purpose in filing Form I-924A is to show continued eligibility to participate in the Regional Center Program, specifically by demonstrating that the Regional Center is continuing to promote economic growth, improved regional productivity, job creation, or increased domestic capital investment in the approved geographic area. (As per Section 610(a) of the Appropriations Act and 8 CFR 204.6(m)(6))
- Each Form I-924A will be reviewed by a new compliance group within IPO. As part of its review, this group will:
- Review the info provided in the I-924A for timeliness, accuracy, and completeness
- Consider both your Form I-924A responses and any supplemental narrative and exhibits that you choose to provide to determine whether your Regional Center did something to promote economic growth in FY2014
- Check the numbers you report in the I-924A against other info USCIS has on file for your RC, and red flag any inconsistencies
- Perform an Internet search and a search through internal databases looking for derogatory information related to your Regional Center and its projects and principals
- Investigate your Regional Center’s online presence (RC’s website, online content from agents and promoters) and look for any impropriety (USCIS has said they particularly look for use of the DHS seal or USCIS signature; any claims about guaranteed returns, guaranteed approvals, or expedited treatment of petitions; and any language (including entity names) that implies a special relationship with USCIS, DHS, or the US government. Keep in mind USCIS’s Cautions on Names of Regional Centers and Enterprises, and Unauthorized Use of DHS Seal)
(Sources: 8/13/2015 stakeholder meeting, 9/17/2015 engagement, and FOIA material)
Prepare the I-924A with this review in mind. Add narrative explanation to your I-924A as needed to avoid any questions about apparent inconsistencies, derogatory information, or inactivity. And review and fix any problems with your web presence now.
IPO Processing Times
For what it’s worth, here’s another chart tracking average processing times reported for IPO. Just keep in mind that anecdotal evidence suggests a huge standard deviation around these averages.
I think the real processing story is in volume of receipts and approvals, but we’ll have to wait a few months before USCIS publishes those numbers for the fourth quarter.
New Regional Centers
The USCIS Regional Center list has now exceeded a thousand entries, expanded in part by the large number of multi-state Regional Centers approved since late 2013. In allowing RCs to claim huge geographic areas, IPO has liberally interpreted Congressional intent that “a Regional Center shall have jurisdiction over a limited geographic area, which shall be consistent with the purpose of concentrating pooled investment in defined economic zones” (Section 610(a) of the Departments of Justice and Related Agencies Appropriations Act 1993).Additions to the USCIS Regional Center List, 10/08/2015 to 10/19/2015
- AGC California Regional Center, LLC (California)
- Global America Regional Center (California)
- MCFI – Northern California, LLC (California): www.mcfiusa.com
- Invest CNMI, LLC (Northern Marianas Islands): investcnmillc.bridgecapitaltestsites.com
- AGC New York Regional Center, LLC (Connecticut, New Jersey, New York, Pennsylvania)
- American EB-5 Properties Regional Center, LLC (Northern Connecticut, New Jersey, New York): apeb5.com
- Ironstate Regional Center, LLC (Connecticut, New Jersey, New York, Pennsylvania)
- American National Immigration and Education Center LLC (District of Columbia, Maryland, Virginia, West Virginia) http://amniec.com/
- Central Western Regional Center LLC (Illinois, Indiana, Michigan, Missouri, Ohio, Pennsylvania, Wisconsin) USCIS Designation Letter
- Ashcroft/Sullivan/Baybridge Mid-Atlantic Economic Development Center (Maryland): aseb5.com
- CMB North Dakota Regional Center (North Dakota): www.cmbeb5visa.com
- Landy Resources Management, LLC (North Dakota)
- EB 5 Capital-Texas Regional Center (Texas): www.eb5capital.com
- Lone Star EB-5 Regional Center (Texas)
Direct v RC Structure (AAO decision), New RCs
October 15, 2015 Leave a comment
New AAO Decision (Direct EB-5 Investment Structure, Evidence Standard, Multiple Investors)
I keep seeing evidence of confusion about how direct EB-5 and Regional Center EB-5 differ, and cases that try to use a Regional Center structure for direct investment. Test question: Which structures in Figure 1 are options for a direct EB-5 investment in a hospice business: A and B, or B only? (Assume that the hospice is owned by the entity in whose box it appears.)
The correct answer is: B only, because job creation in A is indirect with respect to the new commercial enterprise. Counting indirect jobs requires Regional Center sponsorship; in direct EB-5, you can only count employees who provide labor for and receive wages directly from the new commercial enterprise. The NCE and the hospice could potentially have different tax ID numbers, but they must be a single enterprise (a single entity, or one entity wholly owns the other) in order for the NCE to count the hospice jobs as direct jobs. If the NCE makes a loan to or investment in another enterprise, the jobs resulting from that investment don’t count because they’re not the NCE’s direct jobs. Figure 1 is similar to the fact pattern from an actual direct EB-5 case that USCIS denied in 2011 and whose appeal the Administrative Appeals Office just dismissed (see decision OCT022015_01B7203 Matter of H-G-). The petitioner in this case first filed I-526 with a Structure A fact pattern, was denied, then reported on appeal that “the entity previously in the middle … has been dissolved to make this a direct investment and job creator” (Structure B). But the fix came too late; a petitioner must demonstrate eligibility at the time of filing and may not make material changes in an effort to make a deficient petition conform to regulatory requirements.Another timely reminder in the Oct. 2nd AAO decision concerns evidence quality. AAO quotes 8 C.F.R. § 103.2(b)(2) to support the point that a petitioner must submit primary evidence unless it’s demonstrated to be non-existent or unavailable. (In this case, the petitioner provided letters from city officials saying that licenses had likely been issued, but should have provided copies of the licenses themselves or demonstrated the unavailability of such primary evidence.)
I’m also interested in the decision’s statement on the issue of multiple investors. The AAO writes that since the I-526 petition revealed that at least six EB-5 investors would be involved in this enterprise, the business plan should have shown the total investment and job creation for all six investors, and the petition should have included an agreement among the investors for job allocation.
New and Removed Regional Centers
Additions to the USCIS Regional Center List, 09/21/2015 to 10/08/2015
- MW International LLC (California)
- Paramount Regional Center, LLC (California)
- EB5 Affiliate Network New York/Tri-State Regional Center (Connecticut, New Jersey, New York): eb5affiliatenetwork.com
- Liberty EB5 Regional Center (Pennsylvania)
Additions to the USCIS list of Terminated Regional Centers
- Next Bay Properties, LLC (California), terminated 10/1/2015
EB-5 Updates 