11/19 Stakeholder Meeting with USCIS (redemption, redeployment)
November 19, 2018 50 Comments
Anyone not already depressed and frustrated is welcome to my recording of today’s EB-5 stakeholder teleconference with USCIS.
A commenter asked: can you please clarify what was expected outcome of this teleconference and what did not go well. That’s an excellent question, and makes me admit that the teleconference was no worse than could have been expected. This was the first public engagement with IPO in over a year, and absence makes the heart forget how public engagements work. Public engagements are not the right venue for delivering new policy guidance, so we can’t expect interesting answers to important questions. IPO can’t limit who asks questions, so much time gets wasted in obvious responses to ignorant inquiries. The call did provide some nice program updates and input that didn’t interest me because I’m well-informed and already knew and previously reported on them. But I can’t blame IPO for repeating the information for the general public.
Here’s what I learned:
- A few pieces of information:
- “The agency has considered public comments on USCIS’s Immigrant Investor Program Modernization Regulations (NPRM) and is working to finalize this NPRM soon.” (I-829 Division Chief Tisa Weatherall in minute 15) In follow-up questions, IPO declined give any time estimate for EB-5 regulations, or comment on whether they expect the OMB Fall Agenda estimate of 11/00/2018 to be met. The regulations are “moving forward through the formal process.”
- IPO will put additional resources on I-829 in FY2019
- “In terms of redemption agreements, we also received questions regarding new language in the recently published Policy Manual, specifically regarding redemption provisions with respect to those I-526 petitions or immigrant visa applications that have been denied. To clarify, agreements allowing redemptions of investors’ equity whose I-526 petitions or immigrant visa applications have been denied
are not permissibleare not impermissible.” quoting Division Chief Chris Mason at minute 20-22 of the recording. This resolves an ambiguity pointed out by Carolyn Lee in her incisive comments on the New USCIS EB-5 Redemption Policy Update. - Division Chief Ricky Murry clarified that the Policy Manual updates on geographic area amendments and regional center boundaries were intended to be separate updates, and were not intended to impose new requirements. IPO thinks that the addition of the word “contiguous” to the geographic area section of the Policy Manual simply harmonizes with the I-924 Form and Instructions, which have used the word “contiguous” since 2010. (at minute 21-22)
- When a project is completed before the investor achieves conditional permanent residence, the NCE may, can, but above all must redeploy the capital. (at minute 43)
- IPO has not seen any recent increase in active criminal investigations, and has noted decrease in Requests for Information from law enforcement partners. But it encourages the public to report any known or suspected fraud or abuse. IPO Chief Sarah Kendall pointed out this page on Combating Fraud and Abuse and email address for tips.
- FYI here are links to other resources mentioned on the call:
- IPO’s division chiefs sound fresh and sweet, and capable of reading aloud from the policy manual, the USCIS website, and past stakeholder meeting notes. Additional powers were not on display, except from our old friend Jan Lyons who dared at one point to interpret policy in direct answer to a simple question (starting at minute 37), only to have his comments shut down and thoroughly retracted (several times later in the call).
- These appear to be the available answers to policy questions: (1) let us read to you the current public written guidance, with no comment on what we think it means; (2) the current statutory scheme and regulatory framework limit our ability to address, clarify, or fix this policy, sorry; (3) we make decisions from the gut on a case-by-case basis, and therefore cannot generally state how policy could apply to a fact pattern, sorry; or (4) send an email to the public engagement mailbox and we’ll think about it.
- IPO has not publicly clarified its policy on further deployment because IPO itself is not sure how to interpret the policy at this time. IPO has not agreed or decided such basics as whether further deployment needs to be in the same geographic area as the original deployment (within the original regional center geographic area or not), whether it needs to be in the same form as the initial deployment (e.g. whether preferred equity must be followed by preferred equity, or could be followed by a loan), whether the redeployment must be in the same type of project (e.g. whether initial deployment in hotel must be followed by another hotel investment), whether the redeployment must be new money in a project or could replace existing financing, what about municipal bonds makes them an option, and when, and how the sustainment rules apply in case of bankruptcy after the job creation requirement was met. IPO at least clarified on this call that these answers do not yet exist – that they’re all points that they still “need to look into,” and about which they have yet to agree internally. Here’s how the call ended at the one hour mark.
- Public: So can I make one further comment? So a lot of these redeployment deals, they’re going on now, right. So we would like USCIS to apply whatever policy it comes up with prospectively and not retrospectively. Because we’re redeploying now, because we have no choice. We don’t want all of our investors to later get denied because we guessed wrong about what we thought you were ultimately going to come out with. To the extent that we’re redeploying before you come out with a policy, we would greatly appreciate if you don’t, you know, later deny all of our investors for not meeting the policy that hadn’t been promulgated yet.
- USCIS: So, duly noted. No promises, but duly noted.
EB-5 Updates 
It seems like USCIS dont even know what the heck they are doing ? they dont even understand EB5 and all i saw was deflection and dont know answers in the conference. Hopefully the money will stop pouring into US and EB5 program dies soon.
Maybe I was too harsh. They know more than they are allowed to say in a stakeholder meeting context. But the future does look gloomy.
I only saw deflection, no straight answers from USCIS. I expect massive lawsuits to pile on and make this program beyond salvage.
Service providers piling onto EB-5 since its inception are overrepresented by lawyers. Lawsuits are the low hanging fruit spilling from this litigious cornucopia of corruption flooding the system. Get a “straight answer” from a government lawyer? Never! Ambiguities built into and perpetuated by the system serve to generate the “lawsuits” that are “piling” on. s/the Ole’ Buzzard
Absolutely. Substantial progress shall be made with no further delay to address those burning issues of at-risk abuses and offending redeployment approaches. Any ambiguity of articulation or tardiness in responding to the mounting frauds by the greedy mammoths of the industry could lead to piling lawsuits soon. Look out into the future for the industry and take due care of the innocent investors whose capital contribution has created and continues creating over half million job opportunities for this country.
Hello, can you please clarify what was expected outcome of this teleconference and what did not go well. A quick summary of the issue will help.
I’ve updated my post in response to this excellent question.
This teleconference has Lee Cissna written all over it and it was just a deflection play to check off a box of for speaking to the public. Cissna does it all the time and it was exhibited in great form with the Senate hearing on 6/19….lips are moving but don’t say anything.
Very disappointing and it appears the participants from the USCIS were instructed not to answer questions or provide guidance. This isn’t fair to these people and certainly not to the public listening in. We pay their salaries and it is their job to provide us with guidance for following rules and regulations their responsible for.
I feel sorry for the USCIS employees and all of us that listened in. This is an embarrassment and one has to wonder if we will ever see the leaders of these agencies taking responsibility and doing their jobs.
You really nailed it with your list of 4 “available answers to policy questions.” It’s so frustrating, after so many years, I can’t even bring myself to listen to these engagements because they just frustrate me. (“Yes, that’s exactly my question, I have a client whose livelihood depends on this… ah, no answer, great.”) We have people begging for clarity on the rules so we can follow them, increase transparency, reduce fraud, and make USCIS’s adjudications easier. And USCIS repeatedly says, “Nah.”
“To clarify, agreements allowing redemptions of investors’ equity whose I-526 petitions or immigrant visa applications have been denied are not permissible, are not impermissible.”
What does it mean? USCIS donot allow regional center to refund the Eb-5 investor whose I526 is denied?
If so, when redeployment is coming, if I choose to give up green card application, I cannot get my money back, right?
Could you please kindly help me understand this? Thanks
I transcribed the words exactly, but I should edit to correct a slip of the tongue. I’m pretty sure that he just meant to say “are not impermissable”
Why wouldn’t someone say…”are permissible”? Isn’t this was “not impermissible” means?
I guess the government is like a mother so reluctant to say “yes” that she can only come out with “I’m not saying no”
Got it! As a former CPA use to reading Federal double talk, I wanted to make sure. 🙂
And THIS is probably one of the biggest reasons that I’m scared to commit to EB-5, because even the USCIS isn’t willing to offer clarity. If they keep this up, I’m sure that I’m not the only one going to go with EB-1C.
Can someone let me know the summary why people are so disappointed with EB5 investment program
EB-5 is struggling with the consequences (backlogs & wait times for certain countries) of visa demand in excess of available visa supply, and from uncertainty around policy issues, possible regulatory changes, and statutory basis. I see that EB-5 can be and has been a wonderful opportunity for many investors and project companies, but it’s complicated, and some people are facing the disappointment of realizing that EB-5 isn’t what they thought when they got into it.
Let’s see.
If I and my brother applied for EB-5 visas, it’s going to take us 6 YEARS to get a temporary green card as we’re Indians and it takes Chinese investors 14+ years to get a temporary green card, while it’s going to take only 2 years for us to get the PERMANENT green card under EB-1C category if we went with the guy from Orlando.
I’d get my money back in 10+ years if I chose EB-5 visas or 5 years if I chose EB-1C. However, the EB-1C visa guy says I’d need to work in the business for at least a few months, while there’s no requirement to work for the business in EB-5 visas.
Or, I can just say goodbye to the US and choose Canada, where I’d get permanent residence in 5-8 months and a passport in about 5 years.
I should mention: be sure to do your own research about EB-1C requirements. One thing mentioned at the AILA/IIUSA conference is that people are seeing increased instances of fraud in other EB categories, instigated by service providers who need to keep getting clients for some visa category, and don’t mind trying to push round pegs into square holes, while claiming the hole is round. I personally don’t know much about EB-1C or anything about “the guy from Orlando,” but just be sure to do the research!
Sorry to be jumping here but why would it take 6 years for temporary green card for EB5 for Indians? USCIS site processing times shows 24 months for I526 processing and another year if there is no retrogression especially now for Indians. Can you clarify
The 6 year estimate comes because there will be retrogression for Indians based on the current number of pending applications and petitions. You can listen to the recording and read the slides linked to this post for full detail https://blog.lucidtext.com/2018/11/05/aila-iiusa-forum-updates-kendall-oppenheim-visa-availability/
Hi Suzanne can you please let me know what are the requirements for someone on a work visa in US to apply for EB5 investor program
Agree with Suzanne. This seems highly suspect. I would be very careful in your position. I have warned clients against participating in similar opportunities due to the immigration and investment risks. I would advise seeking an attorney or attorneys familiar with EB-1C and business law.
@Charlie, I’m Indian and we don’t let go our money so easily, and we don’t form our opinions without asking several straightforward questions to learn the truth. We’ve worked hard for our money and are going to be sure that we choose the best possible option, instead of becoming victims like the Chinese investors who were defrauded by the regional centers.
I have checked everything that the Orlando guy has said, and so far have been able to verify it independently with an immigration lawyer. My brother recently met 3 regional centers, and I myself met 2, and none of them are even willing to offer audited financials, and the one from BIG (Tinian island regional center) definitely lied about a couple of important numbers and didn’t know if they had the contract signed with the hotel franchisor, and Elevate Capital (Jersey City) didn’t know if their regional center had the mortgage approval yet or no and pretended to be surprised to hear that Indians would have to wait over 6 years for a temporary green card, when I do know for a fact that a friend of mine had already asked them this exact question earlier in another city. When Regional centers are unwilling to even honestly tell us how long it takes to get a temporary green card, don’t know if they’ve signed contracts with franchisors or obtained mortgage approvals, and don’t wish to provide audited financial statements to us, it makes us start suspecting trouble.
I’m actually grateful to Suzanne for her prompt analysis on important topics, and hope to see her report some good news from USCIS so that I and my brother can just go for EB-5, instead of EB-1C or Canada, but worst case scenario, we’re definitely open to EB-1C or Canada too.
@Suzanne, the guy from Orlando is named Mohammed, and my sister met him recently in Orlando. They’re willing to offer a written fee refund guarantee, a right to audit, and a guarantee of full disclosure of material facts, which is something I that I and my brother have seen 30 regional centers refuse to do. I started asking regional centers to offer the same rights and guarantees that he’s offering, and I couldn’t find any after me and my brother reached out to 30 regional centers, which is why I’m looking at him seriously.
Sameer,
So are you still going to be a part of EB1 category or is that a different category ? If that’s the case, 2 years is being very optimistic. Lot of EB2 to EB1 upgrades, especially among Doctors. People on expedited EB1A and EB1B are waiting for more than 1 year and will wait for a while.
EB1 is also going to have long wait period for Indians.
EB1 already has 6+ years wait time for India. This time will increase in future as lot of applicants are converting from EB2/3 to EB1 and that retain original PD. Also rejection rate is way high for EB1.
https://www.cato.org/blog/150-year-wait-indian-immigrants-advanced-degrees
Dear Charlie,
From your words, you seem to be a lawyer who may have worked with several regional centers.
If this is true, can you please let me know if you come across any regional center that shares audited financial statements with investors and guarantees full disclosure of material facts as well as an unconditional fee refund guarantee in case a client is denied due to the RC’s fault?
@Chandra Ojha,
You’re right that life can take a turn for the worse in a matter of minutes. I wasn’t trying to put down the Chinese, just saying that we Indians are not as trusting as them, and tend to ask more questions compared to others.
@Sentap, Mohammed Shaikh is from http://www.SmartBusinessBroker.com and so far I’m comfortable with the responses I’ve received from him but just don’t know how I’m going to manage 2 jobs simultaneously for 4-6 months. I’m waiting to hear back from the lawyer I’m working with to find out if I really need to work that long with him.
I dont get it. If you have the EB1C route why are you looking into auditing an EB5 firm. You should be up joining one of those CTS, TCS fake manager positions?
@Indian, EB-1C doesn’t have a 6 year wait time for Indians. I don’t care what Cato says, I’m going by what the USCIS and State Dept. say. Secondly, the article you cited itself says that most people don’t jump between queues, and third, it’s quite hard to go from EB2/EB3 to EB-1C category.
@Kishore, I’ve my reasons to prefer avoiding to work for a JV firm for a few months, and instead prefer focusing on my own affairs if possible. If necessary, I’ll anyway opt for it or choose Canada.
@Chandra Ojha, we’re looking at the EB-1C option offered by the Smart Business Broker firm. Even if takes 3-4 years (worst case scenario as per the lawyer we’re planning to hire IF we go with the EB-1C route), it still gives me a permanent green card in significantly less time than it’d take me to get a temporary green card under EB-5.
The biggest fear I have is losing money AND not getting my green card either, and so far all of the people we’ve met from regional centers seem to be liars or incompetent and uninformed scamsters who think that Indians are like the Chinese and will just hand over their money without thinking twice about anything. If a regional center doesn’t know if a hotel has signed an agreement with the proposed franchisor whose logo shows up in their presentation, or another regional center doesn’t know if their mortgage is preapproved or not, and every single regional center we’ve spoken with has failed to produce audited financials, what do you expect me to do except either look at direct investment EB-5 (where the same 6 year wait for a temporary green card exists), or opt for EB-1C (where I’d anyway get a permanent green card in less time than it takes for temporary green cards in EB-5 visa category), or just go with the Canadian option and do business over there.
Sameer,
Ultimately I am sure you will make the very smart decision which is right for you. I just want to request one thing. Please don’t make it India vs Chinese. I am very very proud Indian but is not oblivious to the reality. China is way ahead of India. Also Chinese people are very smart. Many a times it is just the circumstances. We in India are very fortunate to have democracy as well as English language ( probably only good thing about heinous and most criminal British Imperalism). We all live with hope and trust.
I don’t know your background but am sure you are very accomplished. Life is a matter of one heartbeat, my friend. I have been a witness to quite a few of those. Its not only us as an individual, society or nation but also the circumstances and time.
Ironically America was found because they were looking for India. So lets have a perspective. Lets have some empathy for our Chinese friends. They did what was best at that point for them and their family. Keep in mind be it EB5, EB-1C or anything else, it is just a matter of seconds. Best decision can turn out to be worst in a flash.
Good luck to you in your endeavors.
Sameer,
Please do research on EB-1C legal requirements before making any commitments to this “Orlando guy”. Seems to me that if he’s offering the “right to audit” in an EB-1C case, he does not know what he is talking about or you are being fooled.
Steven, I’m doing my research AND getting everything else verified through an immigration lawyer just to make sure I’m understanding things correctly. Mohammed (the Orlando guy) says that all clients have the right to audit financials in the JV because the money is being invested in a JV business, and they prefer that the overseas investor operates the business, so he is basically making money on the front end (with our fees) and back end (as part of the profits). If he’s investing the same amount as us in the JV, and is asking us to operate the business and gives us the right to audit the books, it tells me that he’s being transparent and is committed as much as we are.
The reason they’re doing a JV is because unlike the subsidiary and branch office, we can directly file for green card in a JV AND we’d also get a 3 year L1A visa in a matter of months, which allows us to start living right away in the US. This is one more major factor that is very attractive for us, because we don’t get any such option under EB-5 visa category. I’ve a pending EB-2 category petition, and as “Indian” suggested, we are planning to use my PD from EB-2 for the EB-1c petition anyway, which makes life a lot easier for me by giving me immediate visa availability. The only thing I have a hard time with is the requirement to work for a few months in the JV after I get the green card, because I already have a high paying job with a very demanding employer and I don’t think it’s going to be easy getting leave approved for 4-6 months, which means that if I do go for EB-1c, I may have to work 2 jobs simultaneously for that period of time.
The JV model he proposed anyway guarantees that the books of accounts would be prepared by a CPA to ensure compliance with USCIS and IRS requirements, so that again is a major advantage, because I don’t think that the CPA will prepare incorrect accounts.
Good luck.
EB5 is working. Not all RC is terrible. Do your research correctly and invest in the right project. Project quality significantly improve in last few years. Also if you have so much issues with RC than invest in direct investment. I personally prefer RC route over direct investment.
If you consider EB5 after 1 year than wait time may be 10 years for Indians.
There are a lot of scams going in EB1C and USCIS is also aware of this. This is reason they released new guidelines last year, and that makes clear about functional manager role. Some requirements are tough to meet for big companies also.
Click to access APPROVED_PM-602-0148_Matter_of_G-_Inc._Adopted_AAO_Decision.pdf
@”Indian”, thanks for the heads up, but you need to remember that they’re offering a full fee refund guarantee, and I do intend to hold Mohammed to his full fee refund guarantee in case it’s rejected. If you can find me a regional center that fully discloses material facts, offers audited financial statements for review, and offers a fee refund guarantee, please let me know.
The problem with EB-5 (direct or RC) is that it takes 6-8 years for Indians to get temporary green cards, and I’ve kids and so does my brother.
I’m sure that you understand that the EB-1C is for both managers and executives, and his email says that he’s planning to have us as executives, so the functional manager policy memorandum is inapplicable in our case, as it applies to managers but doesn’t apply to executives.
Your call.
FYI – please read this memo carefully it applies to both — Executive & Manager.
That’s what my point is if you waste 1 or 2 years in this process. You may get your money back on failure but you permanently miss this opportunity for EB5 due to new backlog.
Lets hope you are not committing fraud by bending the rule and you are really qualified as an executive so you can circumvent the visa backlog. In that case you are genuinely committing visa fraud and would be a lifetime ban. I truly hope that Eb1 managers are real managers and not the so called dummy managers from TCS, CTS and Infosys. Honestly i hope they backlog EB1 too deny all the fake managers and ban them indefinitely.
Who is this “Mohammad the Orlando Guy”?
Hi Suzanne,
Again, amazing work! You really are a life savior.
If it’s not too much trouble, would you be able to estimate what the timeline looks like for an EB5 petition filed in December 2017? Over 6 years if the petition is filed today is my understanding. But assuming mine is approved in the next 6 months, would the temporary visas likely be available to Indians in 2019 who filed in December 2017?
Thank you,
TM
I wrote my thinking about India and the data I know in this post: https://blog.lucidtext.com/2018/11/13/applying-data-to-questions-i-526-timing-visa-timing-for-china-vietnam-india/ If I interpret the numbers correctly, there are about 4-years worth of Indians in the system with priority dates earlier than December 2017. So at worst, you’d wait 4 years from priority date. At best, you might possibly get a visa in 2019 if your I-526 gets approved ahead of other I-526 filed earlier, and you get documentarily qualified very quickly.
Hi Charlie,
Here’s some more discouraging news on EB-5, which makes EB-1C or Canada seem attractive in comparison.
https://www.globest.com/2018/10/29/expect-more-eb-5-lawsuits/?slreturn=20181022082824
This is why I’m still looking for a regional center that shares audited financial statements with investors, and the CEO and CFO both guarantee the full disclosure of material facts, and also offer an unconditional fee refund guarantee in case a client is denied due to the RC’s fault.
With Smart Business Broker, I at least have them stating in writing that if we do sign up as clients, they’re willing to fully share all material facts and offer an unconditional fee refund guarantee too, and we’d have a full right to audit in addition to full access to raw financial data anyway. I don’t think I’d see regional centers offer this level of transparency and accountability.
If you know of any such regional centers, please let me know.
Thanks
Sam
Most genuine RC’s have a clause that they will refund the money if i-526 gets denied. If they offer you unconditional refund then your money is never at risk. Your petition is straight forward rejection.
Hi Kishore, capital doesn’t need to be at risk in EB-1C visa petitions. I had the same doubt and already checked this independently by asking a lawyer, and confirmed it won’t be a problem because at risk requirement is only for EB5. So, you are wrong and it won’t be a straightforward rejection.
I appreciate your concern though.
Quoting Kishore “Lets hope you are not committing fraud by bending the rule and you are really qualified as an executive so you can circumvent the visa backlog. In that case you are genuinely committing visa fraud and would be a lifetime ban. I truly hope that Eb1 managers are real managers and not the so called dummy managers from TCS, CTS and Infosys. Honestly i hope they backlog EB1 too deny all the fake managers and ban them indefinitely.”
@Kishore, I really won’t dignify this statement with a response. I am unsure what your agenda is, but I can assure you that I wouldn’t have already obtained an EB-2 visa approval if I was a fraudster as you just alleged. I already have an MS and MBA from reputed tier 1 universities in the US and have a documented work history working for a Fortune 10 company in the US and India.
Moreover, you also just cast aspersions on reputed multi-billion dollar companies like TCS, CTS, Infosys, etc.
Just what exactly leads you to hope that they backlog EB-1 too, and what makes you think that the managers are fake? You’re really making all Indians look bad.
@Suzanne, is it possible to ban Kishore?
@ Kishore : Sameer here is absolutely right. I have followed your statements right from the time I started following this blog. I don’t know if Kishore is a Pseudo name ( Wolf in a sheep coat) but you have a very anti-Indian stand most of the times for no legitimate reason. For a long long time, I thought you are one of those ABCD (American born confused desi), not comfortable in their skin and out there to trash everything Indian ( just like Bobby Jindal, who has literally acknowledged to be ashamed of being Indian in pursuit of his political ambitions).
I am also suffering because of the backlog and had to go EB5 route despite being a pioneer Interventional Cardiologist in a rural area. Many of my school friends successfully got Eb1C with no credentials to match. However it doesn’t make me bitter against them. India’s success and amazing reputation of Indians world wide, is significantly owned to our exemplary IT and medical professionals. There are bad apples but they are omnipresent. As Sameer said, you can not pull companies like TCS, CTS, Infosys etc down just because of visa backlog. If you are an Indian, you ought to be proud of their success and that too in USA, where the competition is most fierce and you need to be best to be at the top.
And I think this is a good place to end the discussion, now that several sides have been stated eloquently. Kishore will keep trying to be helpful while taking more care to avoid broad generalizations and personal offense.
Just off topic – does anyone have any update on December 7 deadline being extended? What are chances of it being extended? Thank you.
@AT, as Suzanne pointed out earlier, it’s most likely going to just be extended again without changes for a few more months, and we’d need to worry more about the investment amount being increased and other upcoming changes proposed by the USCIS. As it is, the required redeployment required is a bummer, and I’m not going to make up my mind until I learn more.
Any updates on RIN 1615-AC07?
Every day I check the OMB dashboard for regulatory actions under review, and can confirm that at least the EB-5 regs haven’t appeared there yet (https://www.reginfo.gov/public/jsp/EO/eoDashboard.jsp) Supposedly OMB review should be the next stage before final rule.
sameer your article and knowledge is imaculate can u send your number