10/29 Kendall remarks for IIUSA

The USCIS website has published Immigrant Investor Program Office 2019 IIUSA EB-5 Industry Forum Sarah M. Kendall Remarks October 29, 2019. (I also recorded the remarks, but my recording adds nothing of significance. Kendall followed the script.)  This post highlights what I did and did not learn from Kendall’s remarks.

I-924A Tips

Kendall helpfully offered specific tips for avoiding questions on the Form I-924A Annual Report:

• Avoid inconsistencies with information previously provided to USCIS (and when something is different, explain)
• Remember to provide government-issued photo ID for all regional center principals, as required
• Remember that changes to a Regional Center’s name, ownership, organizational structure, principals, and geographic area must be reported separately with a Form I-924 amendment; RCs cannot simply notify USCIS of such changes on an I-924A.

Processing Times

Sarah Kendall mentioned three factors behind low production and high processing times in 2019: the lapse in regional center program authorization from 12/22 to 1/25 that disrupted processes, a training session for I-526 adjudicators and economists, and a greater focus on program integrity. The first two factors each cost a few isolated weeks of adjudicative time, so presumably the third factor is the major reason for a massive 60% drop in production. “In 2019, IPO focused on enhancing the integrity of the program and working to find ways to protect the program from abusive actors. This has meant greater coordination with agencies in the law enforcement community and with other partners, including at the Securities and Exchange Commission. …We have also invested in building more robust quality assurance and control programs to ensure consistent adjudication practices. …All of this has some impact on processing times.” Kendall referenced “understandable concern in the community” regarding processing times, but did not otherwise apologize for low production or foresee improvement.  And why would she, if the processing slowdown resulted from an enforcement focus that she does not regret? “We have a dedicated and hard-working staff who continue to handle this complex caseload with diligence and integrity. …IPO has made structural changes to ensure continued program integrity. …we continue to place importance on continually assessing and improving of the EB-5 program’s integrity. … Safeguarding the integrity of the EB-5 program is of paramount importance to USCIS and to the public. We seek to effectively administer the program and guard against abuse.” Kendall concluded by stating that “the expectations we have for ourselves are to run this program with efficiency and with integrity.” But the efficiency expectation does not appear anywhere else in her remarks. Nor does Kendall indicate any awareness that efficiency is also an integrity issue. She may not realize that USCIS’s posted 2-5 year processing times serve to attract abusive actors, promising time for fraud to flourish, while discouraging responsible actors who want their projects and investors to succeed.

Other notes

Otherwise, Kendall’s remarks largely follow the principle expressed by that exemplary civil servant Sir Humphrey Appleby: “So long as there is anything to be gained by saying nothing, it is always better to say nothing than anything.”

• TEA determinations: Kendall restated what’s stated in the regulations, without adding clarification or interpretation.
• Partial investment before November 21: Kendall restated existing policy related the “actively in the process of investing” option, and reiterated the regulation provision that petitions are subject to the rules effective as of the date they were filed. Her comments did not break any ground on this topic, as discussed in my previous post.
• Redeployment: Kendall briefly referenced existing guidance in the Policy Manual, and stated that IPO still continues to work on clarifications (with public input still welcome).
• Protection for innocent investors: Kendall generally summarized policy that constrains the flexibility USCIS is able to offer innocent investors when a regional center or project encounters problems.
• Regional Center oversight: Kendall argued that requirement for regional centers to engage in monitoring and oversight is not new.
• Premium processing: As always, USCIS is not considering a premium processing option for I-526.