Updates (Redeployment, Material Change, India Retrogression, I-526 processing and RFEs)
April 9, 2019 24 Comments
Redeployment
Last year IPO asked industry stakeholders to offer suggestions regarding redeployment. IIUSA has now followed up with a Memo to USCIS on Redeployment Policy. The memo points out again why the redeployment policy should not even exist, since neither statute nor regulation nor precedent supports a requirement to redeploy EB-5 investment into additional business activity after the job creation requirement has already been met and funds have been returned to the NCE. The memo goes on to make the case that if USCIS still persists in requiring redeployment, the options for redeployment investment should not be arbitrarily limited. I hope that IPO will, as promised, give serious consideration to this reasonable feedback.
Material Change
The redeployment problem is bound up with the material change problem, which is why I’m looking forward to a free Material Change Seminar to be hosted by Carolyn Lee on April 17th, 2019 at 2:00 – 3:00PM Eastern. E-mail to reserve a spot and send advance questions.
India Retrogression
Based on a prediction by Charles Oppenheim in October 2018, we’ve been expecting India to reach its annual limit of available EB-5 visas this fiscal year, and get a cut-off date in the Visa Bulletin by July 2019 at latest. However, in a post on 4/2/2019, Matthew Galati shares quotes from AILA’s March 2019 “Check-in with DOS’s Charlie Oppenheim”: “Charlie previously expected EB-5 India to reach its per country limit by July 2019. However, he is no longer certain that will happen. He is watching the demand data and should have a better sense of the number usage within a few weeks. The decline in demand mentioned above, possibly resulting from reauthorization concerns, makes it difficult for Charlie to estimate how many additional numbers may be used by ‘high demand’ EB-5 countries.”
That “decline in demand” refers to “fewer applicants proceeding to final action on their cases at consular posts abroad and USCIS Offices.” The queue of applicants has not reduced in length (probably), but it has advanced to final action more slowly than expected – delayed by the government shutdown and lapse in regional center program authorization. So what does this mean? For most Indians awaiting a visa number, possibly not much. The key question is not “in which month will retrogression occur” so much as “can I get my visa number before retrogression occurs?” That second question depends on the length of the queue in front of the petitioner (which probably hasn’t changed) more than the specific date for running out of visas (which may be later than expected due to slower-than-expected processing). For Indians who will adjust status, a later Visa Bulletin could at least have the benefit of maximizing the window to at least file I-485 (thus opening the combo card option in advance of visa availability).
I-526 processing and RFEs
I created a model that divides inventory of pending I-526 petitions by completion rates, and concludes that processing times should be falling as inventory falls. However, the USCIS processing times report indicates that I-526 times are getting longer, even as IPO has fewer and fewer petitions to process. Why is this so? IPO’s secret, I gather, is to introduce an unofficial new step to the EB-5 process: the comprehensive I-526 RFE. Officially, Form I-526 foresees how funds will be spent and how jobs will be created, while Form I-829 demonstrates how funds were spent and how jobs were created. Officially, a Request for Evidence on the Form I-526 asks questions about the original submission and clarifies eligibility at the time of filing. In practice, IPO has been issuing I-526 RFEs that do not only or primarily question the original submission, but basically ask the petitioner to submit an updated collection of I-526 evidence plus prematurely provide I-829-stage evidence for actual past expenditures and job creation. IPO is adjudicating the I-526 one to two years after it was filed, and the adjudicator is naturally curious about the current status and progress of the project. I-526 business plans are dusty by the time adjudicators finally review them, while payroll records may be available by that time. But the adjudication delay is not the petitioner’s fault, and does not change I-526 eligibility or evidentiary requirements. It’s not right to make a habit of using RFEs as a surreptitious new “Form I-526-B” that calls on petitioners to redo and resubmit original I-526 documents with no fault but age, and prematurely satisfy I-829 requirements at the I-526 stage.
Washington Updates
Apparently there’s some discussion in Washington about visa numbers, and leadership upsets throughout DHS. We shall see what changes actually occur, and whether they affect EB-5.
EB-5 Updates 
You’re exactly right about the “I-526-B” (or whatever you want to call it, since it has no official name since it shouldn’t officially exist). I noticed a couple years ago that USCIS was using their own 2+ year I-526 processing delay to ask “OK, what happened in those 2 years, did you build the building and create the jobs you said you would?” Basically, as you say, like a partial I-829.
I’ve even seen denials for failure to completely build the project, which of course is ludicrous to require at the I-526 stage.
@suzanne: does this mean 526 processing will significantly get worst. i mean its already slow, this just adds more delay.
I was just speculating on possible reasons for an observed fact — that I-526 processing times continue to be longer than I’d expect, are slowing down rather than speeding up if one believes the processing times reports https://www.dropbox.com/s/dfa4ifgop1vhm63/IPO%20Times%20Dates.xlsx?dl=0
There are two contradictory trends pushing processing times — shrinking inventory tending to improve times, and extreme vetting tending toward longer times. We’ll see which trend proves strongest.
some significantly has slowed down after the shutdown ended. Wonder what bureaucracy is going on ?
It is the first time that EB5 industry openly point out that the redeployment policy should not even exist. We investors hope there is no redeployment. Do u think USCIS will give an answer or keep being indifferent？
Is USCIS too busy to even think about redeployment?
I am also curious why EB5 Stakeholders NOW point out that the redeployment policy should not even exist? Obviously, they can benefit again and again from redeployment policy.
Without redeployment, after getting refunded money, investors will wait patiently for green card, and no one will give up immigration process. Investors benefit. However, with the long waiting line, it is difficult for Stakeholders to sell smoothly. Give up exiting money and have less and less new money in? Why NOW point out the redeployment policy should not even exist? What happened? Why not pointed out last year when first redeployment happened?
There was a misunderstanding in my above comments. “No Redeployment” in memo does mean return money to investors.
“The Program’s “at-risk” requirement is simply that the investment in the NCE be sustained, which should allow the NCE the ability to responsibly manage any investment repaid to the NCE”
“NCE, as part of its ongoing business activity, may maintain the repaid investments in cash accounts or in liquid financial assets without the added requirement of again meeting and maintaining a new “at-risk” Program requirement until the end of the Investor’s two-year conditional residency period.”
That means even no redeployment, investors still cannot have money back to themselves if they donot want to give up immigration process?
So Stakehoders still have the money!!!
Indeed, policy and regulations are clear that investor funds need to be sustained in the NCE throughout the investor’s period of conditional permanent residence. The point of dispute is only what the NCE must do with those funds, and this has indeed been a point of dispute since a redeployment policy was first mentioned. The industry is not saying anything new in the 2019 IIUSA memo.
If you think about it, it makes sense that the statute would not permit investors to exit their investment before finishing an immigration process that predicates immigration on investment. The cruelty is not the sustained-in-the-NCE policy, which is logical, but the time to finish the immigration process, which is horribly and impossibly and artificially long. The length of that time resulted from two factors: the limited EB-5 visa quota, and the too-many people who flocked to use EB-5 in a short time without knowing or attending to how many others were also flocking at the same time to fit in a small quota.
In the memo: “NCE, as part of its ongoing business activity, may maintain the repaid investments in cash accounts or in liquid financial assets without the added requirement of again meeting and maintaining a new “at-risk” Program requirement until the end of the Investor’s two-year conditional residency period.”
Dear Suzanne, What do the cash accounts or liquid financial assets mean? As for “the redeployment policy should not even exist” part in the memo, after money repay to NCE, NCE donot need to do with those funds to meet USCIS “at risk” requirement.Thus, what NCE will do with the funds? Keep in the accounts with no or very few interest income? Or they can choose any investment for interest income with no constraint from USCIS?
It seems not easy for regional centers to find redeployment project which can meet USCIS’s complicated requirement now. Therefore, the memo this time mainly aim to ease the regional center’s burder and stress for redeployment? Right?
Investors wonder even if the socalled “no redeployment” can be accepted by USCIS later, our money still need to reinvest to other project or other channel just for regional center’s income interest? right? Thus, Luckily for regional centers, their choices for reinvestment have no constraint from USCIS?
The argument is that USCIS should not constrain what the NCE does with EB-5 after the initial deployment, beyond complying with the immigration requirement that funds not be returned to the in-process investor. In that case, what the NCE does with the money would just be limited to what’s agreed between the NCE and investors as mutually beneficial pursuant to investment agreements. Regional centers and investors have different selfish motives — RCs to avoid complication, investors to avoid risk — but those motives could align in supporting an option such as keeping funds in an investment account versus having to redeploy in a succession of projects.
Hi Suzanne,
I’m not sure if I’m misunderstanding this new I526 situation or not. Do you now anticipate (or currently see) applicants waiting the USCIS quoted ~24months for processing? If not, how much longer do you anticipate the processing time being above what you calculated in your previous model?
Thank you for all your hard work in creating this great blog!!
See my comment above to Kishore. I still expect that processing times should decrease as there are so many fewer forms to work on, but just noting a trend to spend longer on each form, which will be/is mitigating volume-based improvement. But the time effects of that second trend is hard to quantify.
On the other hand, 829 processing delay is getting worse and worse. Now the estimated time range given is from 29.5 to 38.5 months. I was hoping this year the 829 gets some attention after the progress made on 526 during the last few years. I guess that is not the case, sadly.
Did anybody got I-526 approval after Government Shutdown. My priority date is April2017. Its already been 24 months and still waiting.
Approvals have slow down for some reason is the talk in the town. no one know why
Unless your regional center is politically connected and can get 526 expedites. 😉
Does your Shaikh have any political contacts ?
Hi Ana,
After reading Shaikh’s blog (http://eb5-expert.blogspot.com/), I don’t think that he’s politically connected because he’s basically gone ahead and openly accused several elected officials of complicity in fraud, but I definitely trust his ability to get work done.
I also trust his integrity, as he chose to openly expose regional centers in the act of committing fraud, which is what stopped me from going with a regional center in the first place. I would’ve signed with either CanAm or U.S. Immigration Fund, but after reading his LinkedIn post about U.S. Immigration Fund defrauding about 100 EB-5 visa investors, I’m definitely not going to go with USIF either.
@Sameer. Why do you use Sameer when your real name is Shaikh. You have tried very hard and now you have been completely exposed. If you have to use a Pseudo name to carry on your hidden agenda, you can not succeed for a long time. Stop discrediting EB5 the way you do. Just like anything else, it has its flaws but it doesn’t give a guy like you the right to pull it down on every possible opportunity. You are a fraudster and we know it.
Chandra, if you think I’m him, you’re definitely mistaken. Anyway, I’m not going to argue unnecessarily with you. You chose to go with EB-5 while I’m going to go with EB-1, so let’s just see in the future who gets their green card sooner, and who gets their money back.
Sameer can you please invest first and then talk. It’s very easy to talk without having any skin in the game. When you get far enough to invest with Shaikh and about to handover your hard earned money I believe some revelation will open your eyes. Let’s talk after that.
@ Dude … just do it. You have been saying the same for a long long time.
Chandra, my brother and his friend have already gone ahead, and I’m going to do the same by the end of the month. I already mentioned it earlier that I needed to get my money together. Anyway, don’t focus on me, focus on your own petitions, and see how long it takes us to get our green cards. If I’m not mistaken, I’ll get my permanent green card before you get a temporary green card. THEN we’ll see who made the right choice.
Do we have or should we maintain a tracker for last I-526 approval we got, so we can maintain ours hopes high:-)