USCIS meeting with IIUSA (regs, redeployment, processing times), Analysis of Litigation

Report on USCIS Meeting with IIUSA

Thank you USCIS for posting a complete transcript of the USCIS Meeting with IIUSA on October 5, 2018. Such transparency is so helpful. Program integrity suffers from general lack of information, and from the industry’s inclination to promote asymmetry for what little info is given.

At the meeting, USCIS Director Cissna spoke about current developments in EB-5, IIUSA representatives described areas of concern for the industry, and new IPO Chief Sarah Kendall commented on IPO performance.

The entire transcript is worth reading, but here are the most newsworthy elements from my perspective:

  • Regulations: Director Cissna, speaking in October, did not make it sound as of the EB-5 Modernization regulations (regarding investment amounts and TEAs) were on the brink of finalization. He said: “So on the main one, the proposed rule that has yet to go final, it is going to go final. We’re just not ready yet. We’re still working on it. You might have seen, I testified in front of the Senate a few months ago, back in June, and I got screamed at because Senator Grassley was wanting that regulation to be final even quicker. So I told him what I’ll tell you is the answer hasn’t changed. We are going to finalize it; just we’re not done yet. It’s a lot of work to finalize a regulation. But that should come soon.” And then later “Well, I think, I mean, you asked, you know, what are our priorities for the next fiscal year. I think, you know, putting aside the regulations which we already discussed, I think the main one is continuing to ensure the integrity of the program. That’s what it’s about. The reg., it might take a while yet before it gets finally published.” This is a grain of salt to go with the “last chance in November 2018” marketing pushes currently fueled by the OMB Fall 2018 Unified Agenda, which estimated 11/00/2018 for a final rule.
  • Redeployment: IIUSA representatives spoke strongly for the need to clarify policy around redeployment. USCIS sounded receptive but vague — not as if they are currently working on redeployment policy. Kathy Neubel Kovarik, Chief of the USCIS Office of Policy and Strategy, threw out a couple ideas:  that the industry might submit suggestions for how to clarify the policy, and what if USCIS published the details of approved redeployments for industry reference. IIUSA pointed out pros and cons.
  • Processing Times/Petition Backlog: The USCIS website has only published EB-5 petition data through March 2018, and we desperately want to know numbers for filing and adjudication volume for the year. This meeting transcript includes charts with completion information at least. The charts show a heartening increase to processing volume across all EB-5 forms in 2018 vs 2017: +21.9% for I-526, +2.5% for I-829, and +72.5% for I-924. Ms. Kendall acknowledged that I-829 (or as the transcriber tellingly heard it, “oh, no, we’re not,” haha) has “a bit of a bump going on.” She indicated that “in the next year we anticipate putting additional resources to the [I-829] so that we can address the needs of that particular line of adjudication.” She reports that IPO is now fully staffed with 200+ personnel, spread across FD&S, Fraud Detection and National Security, and Adjudications Management, plus “an excellent support team.”

I will report further when IPO Chief Sarah Kendall speaks at the AILA/IIUSA conference in Chicago next week.

Litigation in EB-5

I’m behind in reporting on litigation and enforcement actions in EB-5, but Friedland and Calderon have picked up the slack with a paper analyzing the couple SEC actions and flurry of investor-initiated litigation this year. Here is their helpful introduction to the paper.

In December 2017 when we released the first edition of “Understanding EB-5 Securities: NYU Stern Database of SEC EB-5 Securities Enforcement Actions,” we were skeptical as to whether there would be sufficient developments in this area to justify annual updates. However, any doubts were removed during the first 10 months of 2018.

Below is a link to our latest paper, entitled “EB-5 Securities – New Developments and Updated NYU Stern Database – 2018 Edition,” with the updated database as an appendix.

Topics covered by this paper include:

  • The pending litigation in the CMB Century Park Hotel case, with a detailed analysis of the Investment Company Act of 1940 aspects of the case, as well as discussing the relevance to this case of the recent SEC Order against CMB even though the Order relates to unrelated projects
  • The 2018 SEC enforcement action, the DOJ prosecution and the pending bankruptcy auction of the Palm House Hotel where an affiliate of the Related Companies is apparently the stalking horse bidder
  • The immediate impact of the 2017 U.S. Supreme Court decision in SEC v. Kokesh based on recent SEC testimony before Congress
  • The SEC settlement with Ariel Quiros, the mastermind of the Jay Peak fraud; a comparison of the distribution of proceeds with the distribution under the Raymond James Financial settlement; and possible SEC Whistleblower awards
  • The pending litigation against USIF alleging a secret restructure of the EB-5 investors’ capital, in its atypical role as an in-house regional center
  • DOJ criminal prosecutions in 2018, as well as expected future prosecutions
  • Unregistered broker-dealer actions, including the recent enforcement action against an immigration attorney wearing multiple hats, and a 2018 US Supreme Court decision prompting a rehearing of aspects of the Hui Feng decision
  • The pending litigation against People’s United Bank for its role in Jay Peak and its potential impact upon other banks’ willingness to establish and maintain EB-5 subscription escrows
  • Updates to our SEC EB-5 Securities Enforcement Action Database
  • Our dim outlook on the likelihood of enactment of EB-5 integrity reform measures, although a recent announcement by OMB, DHS and USCIS provides a glimmer of hope

Link to new paper: EB-5 Securities – New Developments and Updated NYU Stern Database – 2018 Edition

Link to webpage on NYU Stern CREFR site listing our EB-5 research:
EB-5 Research Papers and Articles by Gary Friedland and Jeanne Calderon

About Suzanne (www.lucidtext.com)
Suzanne Lazicki is a business plan writer, EB-5 expert, and founder of Lucid Professional Writing.

14 Responses to USCIS meeting with IIUSA (regs, redeployment, processing times), Analysis of Litigation

  1. tpk129 says:

    Thanks Suzanne! What do the tea leaves say about the rule going final in November? The comments above seem to indicate that it won’t. How can they put an announcement out with a due date less than 15 days out and miss it?

    • I don’t know how to read this. Maybe Mr. Cissna was just trying to speak cautiously, and we’ll actually see a final rule in November. Or maybe the OMB solicited their dates quite awhile before publishing the agenda, and reflect a relatively old timeline estimate. I’d put money on the side of government agency delay, but we’ll see.

  2. Dan says:

    Its very interesting to see the processing for for I829, and very depressing. Especially the month of september processing 140 ish!? I cannot see any change in processing times for a long time given that for 24 months in a row its been almost static.

    • LM says:

      I was thinking the same thing. Here is the I-829 adjudication throughput for the past 5 (fiscal) quarters:
      Q4 2017 – 1344
      Q1 2018 – 902
      Q2 2018 – 618
      Q3 2018 – 478
      Q4 2018 – 730

      Can’t really see the progress. I wish they knew the kind of toll on people’s lives this life in limbo situation brings.
      Moving to the US was amazing and we’re very happy, but this is sure stressful.

      • Dan says:

        I hear you, its the worst part in the whole process. The issue is the longer we are here, the more we invest, the more jobs we create in our businesses that we run, the more our kids settle. The harder it would be to leave, the longer it takes.. very stressful indeed. I’m only 18 months in, so probably another 2 years…

        • I suggest that I-829 people try to organize and deliver a document like this to USCIS: https://www.uscis.gov/sites/default/files/files/nativedocuments/N-400_processing_times_-_Mayor_Emanuel.pdf
          I suspect that a factor in slow I-829 processing times is that IPO doesn’t think they’re as urgent as I-526 and I-924, and so devotes fewer resources. When I-829 is pending, the immigrants are already settled in the US, and projects no longer have EB-5 requirements and free to return the money any time. So what’s the rush? A letter like the above could help bring the specific true cost of long I-829 times to their attention.

          • Dan says:

            Thanks Suzanne, appreciate this.I would agree with your comments. Really appreciate your efforts to keep us out of the dark!

          • Kishore says:

            I think its pathetic that USCIS is calling improvements in processing times. I-526 processing times have increased significantly while i-829 processing times have gone to a black hole. Perhaps the top management at USCIS is not capable of either hiring more employees or imcompetency. They do seem to live in alternate reality calling this processing time improvement

          • They’re pointing out improvement in processing volume, which is significant and the only factor in processing times under uscis control. They can’t limit the volume of filings that also drive up processing times.

          • Kishore says:

            I would have to disagree on that. I-829 volume has been there for close to 5 years and yet they are improving processing at the rate of 10-20 percent per year. I call on the incompetency of USCIS at all levels. Poor management and poor planning.

          • D says:

            Hi Suzanne,

            Thanks for pointing to that letter. It was signed by some 30 mayors and it’s no wonder it received a respose from USCIS. Unless the I-829 people can get elected officials to interfere on their behalf, there’s little chance of getting a reply from USCIS.

          • Dan says:

            Just seen the new stats released up to June 30th. 15% of i829 denied. Huge drop in processing. What on earth is going on at the moment?

  3. LM says:

    I second Dan. Thank you so much!
    Your idea is fantastic. I wish I knew where to start.

    Dan, sounds like we’re living parallel lives. We immigrated ~3.5 years ago, filed spring last year and like you expect a couple of more years, but hope for yearend 2019. I did the following exercise, Looked at the size of the queue on the month we filed and then subtracted the adjudicated petitions reported every quarter. Based on that and assuming a pace of 650 a quarter, they should get to us on calendar Q4 2019.
    Of course, that’s an average and could be worse.

    • Dan says:

      We are like 2 peas in a pod. I did exactly the same calculation! I filed 30th June last year so estimated late march 2020. Like you, we love living here and don’t want to leave. My project in Seattle was finished a while back so just waiting now!

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: