Stabilizing the EB-5 Program

The Consolidated Appropriations Act, 2021 passed the House and Senate yesterday (House amendment to the Senate amendment to H.R. 133). [Update: Finally signed by the President 12/27.] The EB-5 industry will note three significant points in this 5,593-page “Omnibus”:

• No country cap change: The Omnibus does not include any version of the Fairness for High-skilled Immigrants Act, or any language that would change EB visa allocation or country caps. This was a close call. The next Congress will provide renewed opportunities to tackle the issue of excessive backlogs – hopefully with improved solutions that truly involve fairness for immigrants and wouldn’t simply retroactively reorder the visa wait lines.  For now, we have more time to educate Congress and the industry on unintended EB-5 consequences, and how they might be mitigated. I’m preparing a quantitative analysis that looks at issue from the perspective of different countries at various points in the EB-5 wait line (not only considering timing for the end of the line, as others have done).  
• No EB-5 legislation: The Omnibus does not include the EB-5 Reform and Integrity Act of 2020, a belated and sadly little-noted attempt at EB-5 legislation. Neither of the co-sponsors, Senator Grassley and Senator Leahy, wrote about the legislative amendment on their websites. (So far I just found a nice mention from Rep. Brian Fitzpatrick.) I guess that few people in the EB-5 industry heeded the call to ask their Congressional reps to support the measure, considering that most of us didn’t even know it existed until a couple weeks ago and had no input into the content or process. The IIUSA Board of Directors had opportunity to deliberate on and decide to support the legislation, and made a brave but belated attempt to explain and sell the hard compromises to IIUSA members and other stakeholders. This bill was indeed an improvement on previous versions, but would have benefited from more broad-based involvement translating into wider buy-in and stronger support when opportunity arose for passage.
• Change to regional center program authorization: The Omnibus extends regional center program authorization to June 30, 2021 – significantly, not to September 30, 2021, when the funding expires. (The extension is in Division O Title I Section 104, page 2,468: “Section 610(b) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) shall be applied by substituting ‘‘June 30, 2021’’ for ‘‘September 30, 2015.’’ ) This move finally decouples regional center program authorization from government funding. That can be good, considering how fraught the appropriations process has been, and also bad, since RC program authorization loses the benefit of inertia. Now the continued authorization of the regional center program will apparently depend on managing standalone EB-5 legislation. If you’re a regional center, pause to eat some cookies and watch the kids open presents, and then talk to your trade association/lobbyists.  Find out how you can support accomplishing legislation that will work for you, because the time is short and the stakes high. We now have a few months to do what we’ve been trying to do since 2015: get EB-5 legislation with long-term regional center program authorization and reforms that help protect and don’t kill the program. And assuming you are one of the majority of EB-5 users who’s not a fat cat and not a fraud, please also seek publicity.  Good legislation depends on changes to the popular perception of EB-5, and a better understanding by Congress of who’s using the program and how.

In order to maintain credibility, the EB-5 program needs stability. U.S. business people using immigrant investment make business decisions and execute contracts that rely on dependable estimates for cost of capital and the time horizon and rules for deploying capital. Potential immigrants invest hundreds of thousands of dollars in reliance on dependable estimates for the potential return on that investment.  EB-5 program costs, timeline, visa availability, eligibility rules, and very existence cannot be shrouded in uncertainty or subject to major volatility.  2020 has been tough, between no-notice retroactive Policy Manual updates and threatened retroactive legislative changes. The program requires better.  I look forward to changes in USCIS, Congressional, and industry leadership in 2021 and a path to more stable footing for the EB-5 program.

Fairness for High-Skilled Immigrants Act

Update: As I hear additional news on the Fairness Act, I add notes to my Washington Updates page.

Yesterday, the Fairness for High-Skilled Immigrants Act came a step closer to becoming law, passing the Senate by Unanimous Consent. (Meaning that Senator Mike Lee, after many previous attempts, finally managed to slip the bill through at a time when no one was in the room who knew to object. See yesterday’s Congressional Record p. 49 for this smooth move, and p. 62-65 for the amended bill text.)  IIUSA says “Having been amended in the Senate, the bill now returns to the House of Representatives for review and vote on the amended text.” Rep. Zoe Lofgren in the House says “While I recognize the sincerity of all Members and Senators struggling to find solutions, unfortunately the provisions sent to the House by the Senate yesterday most likely make matters worse, not better,” but also “I plan to swiftly and thoughtfully work with my colleagues to resolve outstanding issues and get a measure across the finish line that can pass both Houses of Congress.”

This legislation has been in Congress for a long time (since 2011), primarily thanks to the efforts of companies who depend on H1-B workers. The bill’s backers care about EB-2 and EB-3; the bill’s EB-5 impact is apparently an almost accidental and little-noticed side effect. But the EB-5 impact would indeed be earthshaking, since the bill proposes to eliminate the country caps that limit high-demand countries and protect EB visa availability for minority countries. This would change how green cards get allocated for conditional permanent residence, and affect all current and prospective investors who do not get CPR before the bill’s effective date. I’ve written about it several times previously, including last year when the House version H.R. 1044 got action.

I’m out of the advocacy loop, and not clear on the prospects from here, either under President Trump (whose base as represented by Brietbart slams the bill as an “outsourcing giveaway,” but who might be forced to sign if the House embeds this in other must-sign legislation) or President Biden (whose VP is the original co-sponsor to S.386 Fairness for High-Skilled Immigrants Act, but who might be open to better solutions). I’m not clear who is advocating or how for various EB-5 interests. But knowing the composition of the EB-5 backlog, I can once again remind the industry of the impact, if the Fairness for High-Skilled Immigrants Act were to become law as currently drafted.

The version of the FFHSIA in last night’s Congressional Record has these significant points for EB-5:

• Removes the per-country limitation for all Employment Based visas (by amending 8 U.S.C 1152 202(a)(2) to strike reference to Employment Based visas and subsection b)
• Includes transition rules and some savings provisions for EB-2 and EB-3 (“visas made available under each of paragraphs (2) and (3) of Section 203(b)”), but no transition rules or other modifications or protections for EB-5 (visas available under paragraph (5) of Section 203(b))
• The effective date is “the first day of the second fiscal year beginning after the date of enactment of this Act.” I understand that to mean October 1, 2022, if the act passed now.  
• There’s some language regarding status adjustment that might help EB-5, but I’m not sure how to interpret it.
• There’s a “prohibition on admission or adjustment of status of aliens affiliated with the military forces of the People’s Republic of China or the Chinese Community Party.” I don’t know how much this differs from existing rules, and whether it would result in reducing the EB-5 queue any more than it gets reduced already by denials. Potentially, this provision could be very harmful because negatives are notoriously hard to prove. If it came to that, how would I, Suzanne Lazicki, prove that I have no affiliation with the CCP? I have no evidence to prove my lack of affiliation.

How would the Fairness for High-Skilled Immigrants Act recognize the EB-5 backlog?

I have granular analysis that I’ve discussed in previous posts, but I fear that the detail made people’s eyes glaze over and lost attention for this important topic. So this time, I’ll just take a simple approach.

Consider the following table from IIUSA’s Discussion with Charles Oppenheim (November 19, 2020), which estimates the total current size of the EB-5 wait line.

With country caps under current law, the average 10,000 visas annually available to EB-5 get allocated in this order: no more than 7% to each country demanding visas, and any visas remaining to the oldest applicants regardless of country. Practically, this means no visa wait and no backlogs for people from countries that demand fewer than 7% of available visas, but backlogs and wait times for countries that demand more than 7%.

If country caps were eliminated, then visas just get issued in order to the oldest applicants first, regardless of country. So to estimate the “wait time for an EB-5 applicant filing today” you’d ignore all those country rows and just divide the grand total applicants by the annual visa quota. 83,000/10,000=8.3. When ignoring country of origin, the current EB-5 queue is 8-9 years long. If the FFHSIA were passed, then anyone filing a new I-526 today, regardless of country of origin, could expect to wait 8-9 years just for conditional permanent residence.

For people already in the EB-5 process, your visa wait time would be less than nine years if FFSHIA passed, with how much less depending on how long ago you filed I-526. If you filed I-526 in 2018 or 2019 from any country, you could expect to wait at least over five years for conditional permanent residence, since we know that most Chinese in the queue filed earlier than that (their filing surge occurred 2014-2017), and thus at least most of the China backlog recorded in the above chart (57,000 people) would move ahead of you in line. The FFHIA change would have most benefit for those oldest Chinese applicants–those with filing dates from 2015 to early 2017–who could expect most available visas for the coming five years, based on their early filing dates. The wait line gets more diverse from mid 2017 on, so wait times would become long for everyone then.

What difference would a October 1, 2022 effective date make? That delayed effective date would help anyone who is not from China and who does have enough time to push through the I-526/visa process and get green cards under current rules before October 2022. Otherwise, the delayed date doesn’t change much since new wait time estimates mainly depend on the number of China-born people in line, and that number may not get a chance to change very significantly in the coming 1.5 years under the current visa process.

If the FFHSIA would help you or hurt you, act at once. Contact your advocacy group/Congressional representative/advisors and let them know how you feel about the possibility that S.396/H.R.1044 Fairness for High-Skilled Immigrants Act could become law. If you’re from China and filed I-526 before 2017 (or a regional center with such investors), you are probably in favor of FFHSIA, unless that Community Party provision is a problem (though notice that you’d benefit even more from advocating for the visa quota to get applied to principals only, not family members). If you’re anyone else in EB-5, you probably want to advocate against FFHSIA, or at least advocate for savings provisions to protect investors and projects who already committed to and depend on the EB-5 process/timing outlook as defined by existing rules.

The EB-5 backlog and wait times are definitely too long, and that hurts everyone. FFHSIA proposes changes that would improve the wait time situation for some at cost of making it much worse for others. I hope that we’ll eventually have chance to unite as an industry in support of legislation that would improve the backlog and wait time situation for everyone. For example, by interpreting the EB-5 quota as Congress originally intended to apply to investors, not diluted by counting spouses and children.

AAO decisions on source and path of funds appeals

Petitioners who believe that their I-526 was denied in error have the option of appealing to the Administrative Appeals Office. AAO decisions on these appeals eventually get published to the USCIS website, where I read them and take notes to learn more about directions in EB-5 adjudications. I also download copies of the decisions, since the recent USCIS website redesign makes the decisions awkward to find, and since USCIS sometimes deletes files (as happened recently with all I-526 decisions from late June 2020 to September 2020, for example).

For community reference, I have made a folder that collects all AAO decisions since 2018 that specifically address source of funds, including a number of decisions since deleted from the USCIS website: https://www.dropbox.com/sh/igmg6anauua0mtz/AAA2uOuDIfTmKd1C72UJV74Ua?dl=0. A majority of the source of funds appeals since 2019 involve petitioners from China or Vietnam whose path of funds included third party exchangers. The decisions help trace the development of USCIS/AAO thinking on the issue of currency swaps, and include a few sustained appeals. While I do not work with EB-5 source of funds, I hope that this collection of AAO decisions will be helpful reference for people who are facing source-of-funds-related RFEs and NOIDs, or litigating on behalf of EB-5 investors. And I would love to see updated industry articles and advocacy on source/path of funds adjudications. The articles I know about (linked below) are from 2017/2018.

In a currency swap, the EB-5 investor sends local currency to the local account of an intermediary, and the intermediary then wires an equivalent amount in US dollars to the investor’s account in the U.S.  Starting in late 2016/early 2017, USCIS began to issue RFEs requesting source-of-funds documentation for the intermediary/third party exchanger’s funds, as well as evidence to overcome presumption that the exchange itself was unlawful. Older articles for reference:

• Third Party Currency Swaps: Considerations for RFEs (October 2018) by Jennifer Hermansky in IIUSA Regional Center Business Journal
• How USCIS “indebtedness” and “currency swaps” policies are inconsistent (June 21, 2018) by Kristal Ozmun in EB-5 Investors Magazine
• I-526 Practice Tips to Help Avoid RFEs and NOIDs on Third-Party Exchangers (November 16, 2017) by Kristen Ng in National Law Review
• Moving the Goalposts Yet Again: USCIS Issuing RFEs on Currency Swap Cases, Departing from Years of Accepted Practice (April 4, 2017) by Kelly Goldthorpe and Matthew Galati Green and Spiegel

Source of all invested capital

From: Suzanne Lazicki
Sent: October 8, 2020 7:04 PM
To: ‘public.engagement@uscis.dhs.gov’
Subject: EB-5 Question

Dear IPO,

This email asks a single important question in response to the EB-5 Call for Questions. My small business owner clients and I look forward to your response.

Why does the May 2019 USCIS Adjudicator Training instruct adjudicators to apply the lawful capital requirement in 8 CFR 204.6(g)(1) only to “non-EB-5 sources of capital invested in the NCE,” creating a requirement specific to standalone petitioners to identify and be liable for source of funds for other NCE owners?

8 CFR 204.6 (g)(1) does not say that pooled investment is allowed “provided that the source(s) of all non-EB-5 capital is identified and all non-EB-5 owner capital has been derived by lawful means.” Rather, the regulation says “all capital.”

” ….. The establishment of a new commercial enterprise may be used as the basis of a petition for classification as an alien entrepreneur even though there are several owners of the enterprise, including persons who are not seeking classification under section 2 0 3 (b) ( 5) of the Act and non-natural persons, both foreign and domestic, provided that the source(s) of all capital invested is identified and all invested capital has been derived by lawful means.” 8 CFR 204.6 (g)(1) (emphasis added).

8 CFR 204.6 (g)(1) refers to all capital and all owners. What’s required — and not required — of a given petitioner with respect to other NCE owners applies regardless of owner type per the regulations.

The Form I-526 and I-526 Instructions request evidence only for the petitioner’s own lawful source of funds. It is unreasonable to interpret 8 CFR 204.6 (g)(1) as requiring each petitioner to identify, validate, and bear responsibility for the source of all other funds in the same NCE, whether from non-EB-5 or EB-5 owners. But if USCIS does make this extreme interpretation, then it would have to apply per the regulation to “ALL INVESTED CAPITAL”. The regulation does not justify applying 8 CFR 204.6 (g)(1) to non-EB-5 capital only, and using it just to hassle stand-alone petitioners, as has been occurring in I-526 Requests for Evidence issued since May 2019.

USCIS does not deny or revoke the I-526 for EB-5 investor A if EB-5 investor B in the same NCE is found to have a problem. Apparently recognizing that B’s identity and funds are not pertinent to A’s eligibility, USCIS does not ask regional center Petitioner A to identify EB-5 investor B or to validate B’s lawful funds – either in the Form I-526 or in RFE. How then is it reasonable in the standalone context for USCIS to interrogate EB-5 Investor A in RFE about Investor B, predicating A’s eligibility on B?

The basic unreasonableness and lack of justification in the request helps to explain why the Form I-526,  I-526 Instructions, and published policy and filing tips say nothing about evidence to be provided by a petitioner to USCIS for other NCE investors and their source of funds. With no such evidence officially or publicly required, NCEs and petitioners have no way no know when filing I-526 what evidence may be requested, and adjudicators are left to individual caprice in issuing evidence requests. For example, from a sample of four RFEs issued to standalone investors in December 2019, one RFE asks for government ID or business registration document for each other NCE owner, one RFE asks for ID documents plus filed income taxes for each other NCE owner, one RFE asks for ID documents plus narrative description of business activities corroborated by “complete bank statements” for each other NCE owner, and one RFE does not ask about source of funds for non-EB-5 NCE owners. Is this not the definition of arbitrary and capricious processing? Even if such evidence were likely to be available to a petitioner post-hoc from independent parties not seeking immigration benefits. How do evidence requests that are unsupported in theory, unevenly applied, unprecedented in prior practice, impractical in fact, and undisclosed except in a few RFEs support program integrity? These RFEs clearly reflect an error that IPO should correct quickly in order to protect credibility and avoid litigation.

Suzanne Lazicki     Lucid Professional Writing
(626) 660-4030       Cell, WhatsApp, Telegram
suzanne@lucidtext.com
2314 Washington Blvd., Ogden, UT 84401
www.lucidtext.com/

Regional center program authorization and USCIS stabilization

Today begins Fiscal Year 2021. The good news is that the government remains funded and the regional center program remains authorized at least until December 11, 2020 thanks to the H.R.8337 –  Continuing Appropriations Act, 2021 and Other Extensions Act signed early this morning by President Trump. Assuredly no one in government spared a thought for EB-5 this year. The regional center program regularly gets extended as part of the appropriations process unless someone goes out of the way to change it. Such out-of-the-way effort is unlikely considering other issues competing for attention in Washington, and considering that USCIS already accomplished by regulation the major “reforms” that previously motivated EB-5 legislation. Regional center program authorization might be drama-free, these days, if only the appropriations process were drama-free. My chart of regional center authorizations since 2016 does not reflect disputes about regional center authorization, but rather repeated breakdowns in the overall effort to keep the government funded. Each of the PLs in the chart represents an appropriations act or a continuing resolution on appropriations.

Under normal circumstances, we’d be starting FY2021 with funding for FY2021. As it is, we have a continuing resolution that extends the deadline on FY2020 appropriations for another few months, at which time Congress may manage a funding bill through September 2021 – or more likely, another continuing resolution or two. Meanwhile, I don’t expect legislative changes specific to EB-5 any time soon. (FYI this July 2020 IIUSA webinar gave a very interesting look behind the scenes of EB-5 advocacy for long-term authorization and program improvements, and insight into the lack of results.)

In addition to extension of regional center program authorization (in Division A on p 2 – see my Washington updates page for specific language if you’re interested), H.R.8337 includes the Emergency Stopgap USCIS Stabilization Act (in Section 2 Division D Title I, starting on p. 30). This piece of legislation cleverly responds to USCIS’s request for a Congressional bailout by calling on USCIS to raise funds the way it’s supposed to: by collecting fees for services. I avoided talking about this before it was passed, because the legislation could’ve been controversial.  USCIS is apparently trying to get away from providing services to immigrants, and would prefer to be funded by the American taxpayer. The Emergency Stopgap USCIS Stabilization Act authorizes USCIS to sell immigrants a new product at an increased price; specifically, authorizing USCIS to expand and increase the fee for premium processing.  The previous law at 8 U.S.C. 1356(u) had generally authorized USCIS to collect a premium fee of $1,000 for “employment-based petitions and applications.” The Emergency Stopgap USCIS Stabilization Act gives a more specific list of authorized benefit types (including specifically name-checking EB-1, EB-2, and EB-3 through the reference to “aliens described in paragraph (1), (2), or (3) of section 203(b)”), and raises the authorized fee to $2,500. EB-5 is not specifically mentioned in the new law, but also not excluded from premium processing by the original law. USCIS would apparently not need additional authorization from Congress to offer premium processing for EB-5, which falls under the long-authorized category of “employment-based petitions and applications.” However, the long-standing and likely-to-continue barrier in EB-5’s case has been USCIS, which has repeatedly declined to offer premium processing for I-526, I-924, or I-829. (For a recent example, see p. 6 of Sarah Kendall’s remarks at the October 29, 2019 IIUSA industry forum.) USCIS must guess that 99.9% of EB-5 applicants would take the service if offered, making the service difficult to deliver.

I’ll be very interested to see how USCIS responds to this legislation. The new law authorizes but does not compel USCIS to expand and raise fees for a popular discretionary service. Will USCIS actually do this for the sake of budget-stabilizing new fee revenue? Or will the agency continue to sit back and not offer fee-generating services while still complaining to Congress about budgetary problems? Just this week, USCIS posted another statement on budget issues, this time responding to a preliminary injunction enjoining the new fee rule that would have taken effect and raised fees across form types starting October 2, 2020.

My favorite part of the Emergency Stopgap USCIS Stabilization Act is this paragraph at the end, with the welcome title “reporting requirements.”

SEC. 4103. REPORTING REQUIREMENTS.
(a) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall provide to the appropriate Committees a 5-year plan, including projected cost estimates, procurement strategies, and a project schedule with milestones, to accomplish each of the following:
(1) Establish electronic filing procedures for all applications and petitions for immigration benefits.
(2) Accept electronic payment of fees at all filing locations.
(3) Issue correspondence, including decisions, requests for evidence, and notices of intent to deny, to immigration benefit requestors electronically.
(4) Improve processing times for all immigration and naturalization benefit requests.

Supporting Mandamus and APA actions

EB-5 investors facing excessive processing delay have the option to sue USCIS. They can bring claims under the Administrative Procedures Act, which permits federal courts to compel agency action “unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1), and/or under 28 U.S.C. § 1361, which provides for mandamus: an order to compel the agency to do its duty.

But what is constitutes unreasonable delay? What is USCIS’s duty with respect to processing petitions? Is there any hope in suing USCIS over delay for petitions that have been waiting less than the “normal processing” time defined on the USCIS Check Case Processing Times Page? When challenged in court, can USCIS actually support a claim that 3-6-year processing times are normal?

We’re seeing those questions tested now in district court, as USCIS has been fighting APA and Mandamus actions by investors whose I-526 have been pending less than the posted processing times. I wrote about two recent cases in a guest article Legal victories will put pressure on USCIS for normal EB-5 processing. The article discusses orders denying motions to dismiss in Raju et al v. Cuccinelli and Keller Wurtz v. USCIS. In these cases, USCIS tried to get EB-5 investor complaints dismissed, but the judges did not agree.

In fighting a mandamus action, USCIS may make a number of factual claims. They may argue that the USCIS Check Case Processing Times page defines normal processing times, that the investor petition is within the expected queue time, that the time USCIS takes to adjudicate petitions is governed by a rule of reason, that USCIS generally relies upon a “first-come” procedure when adjudicating I-526 petitions, and that USCIS has implemented a visa availability approach to allow more timely processing for qualified EB-5 petitioners with visas available. These claims can be countered with reference to public statements by USCIS, and data published by USCIS and obtained from USCIS via Freedom of Information Act (FOIA) requests.

As an EB-5 expert who has been collecting and analyzing USCIS statements and data since 2010, I have added a service to provide data and expert declarations to support APA and mandamus actions. As applicable, I can can review the touch time and queue time components of processing times, calculate reasonably-expected queue time for a given petition as a function of USCIS-published data for pending and processed petitions, document USCIS reports of IPO staff increases combined with declining productivity, review public statements about processing resources and procedures, review USCIS processing times page reports while pointing out inconsistencies over time and with external evidence, and array USCIS-published evidence that IPO has neither relied on a first-in-first-out process nor effectively implemented a visa availability approach. Please contact suzanne@lucidtext.com if you are interested in data to support mandamus and APA actions.

While I can offer to collect supporting facts, lawyers prepare and file mandamus actions. Here are a selection of articles from lawyers who have helped EB-5 investors litigate processing delay.

• To Remedy Long Processing Times, EB-5 Investors are Turning to Federal Court Litigation (March 30, 2020), Matt Galati at The Galati Law Firm
• When patience is no longer a virtue: Mandamus filing as a solution for pending EB-5 applications (February 26, 2020), Martin Lawler for Green Card by Investment
• Mandamus Lawsuits on Delayed EB-5 Adjudications (December 5, 2019) by Wolfsdorf
• Delayed Application? Here’s What We Can Do (September 26, 2019) by Klasko Immigration

Also note that I’m once again actively updating the Washington Updates page, as we once again approach a deadline for regional center authorization. I add day-by-day legislation-related news to that page, rather than cluttering the blog feed. I expect the usual series of clean regional center program authorization extensions as part of Continuing Resolutions, until Congress finally has bandwidth to actually work out 2021 funding. It currently looks as if the first Continuing Resolution will take us into mid December, and possibly offer some emergency funding to USCIS as well.

And I’m waiting with bated breath to see the October 2020 visa bulletin and annual numerical limits for 2021.

Redeployment policy comment: retroactivity

In addition to my technical comment on geographic area in further deployment, I submitted the following general comment. My goal: to pin down sources of confusion in redeployment policy, and show that redeployment guidance involves more than mere clarification.

——————————

From: Suzanne Lazicki <suzanne@lucidtext.com>
Sent: August 23, 2020 11:26 PM
To: ‘uscispolicymanual@uscis.dhs.gov’ <uscispolicymanual@uscis.dhs.gov>
Subject: 6 USCIS-PM G.2 “Clarifying Guidance for Deployment of Capital in Employment-Based Fifth Preference (EB-5) Category”

Comment Regarding: USCIS Policy Manual Volume 6: Immigrants, Part G, Investors, Chapter 2, Eligibility Requirements [6 USCIS-PM G.2], Part 2, as updated on July 24, 2020 by “Clarifying Guidance for Deployment of Capital in Employment-Based Fifth Preference (EB-5) Category”

Suggested Action: Do not make the “Clarifying Guidance” retroactive

Rationale: The July 24, 2020 Policy Manual Update is made retroactive based on the claim that “this is merely a clarification of continuing eligibility requirements. USCIS is not changing any substantive requirements.” However, it is not mere clarification if USCIS creates requirements. In the case of redeployment, USCIS takes requirements defined by existing regs/policy for Context A and applies them Context B. Lacking justification/reference to authority for why a particular Context A requirement also applies to Context B, that move looks like creating a new requirement for Context B. It can also look arbitrary/capricious when only an unexplained subset of A requirements are applied to B.

Examples of where EB-5 policy has confused contexts:

1. Assuming that the “at risk” requirement defined by regs/policy for the investor/NCE relationship (Context A) also applies to the NCE/JCE relationship (Context B). The June 14, 2017 Policy Manual update on redeployment made this unjustified assumption; the July 24, 2020 Policy Manual update corrects it by removing the “at risk requirement” language from the further deployment sections.
2. Assuming that the regional center geography requirement defined by the statute/regs and Matter of Izummi in terms of job creation still applies even after the job creation requirement has been met. The July 24, 2020 Policy Manual update introduces this illogical assumption, even as it grants that other job-creation-linked requirements (TEA geography, JCE deployment) naturally do not apply after the job creation requirement was met.
3. Assuming that requirements for initial I-526 evidence for initial deployment also apply after I-526 filing for further deployment. The July 24, 2020 Policy Manual includes this assumption as a basis for asserting a regional center geography requirement. If the assumption necessarily held, then further deployment would have a TEA requirement, since TEA evidence is likewise required initial I-526 evidence for the initial deployment. The policy distinguishes between Context A and B when it comes to TEA geography. So why not for regional center geography?
4. Assuming that the word “commercial” as defined by the regs/precedents for the “new commercial enterprise” automatically also applies to JCEs or other entities that ultimately deploy EB-5 investment. The July 24, 2020 Policy Manual update appears to do this, when describing guidelines for deployment and further deployment.  “The capital may be further deployed, as described above, into any commercial activity that is consistent with the purpose of the new commercial enterprise to engage in the “ongoing conduct of lawful business.” (footnoted to the regulations defining a new commercial enterprise). It doesn’t simply work, however, to apply all NCE requirements to JCEs and other deployments. For example, previous EB-5 decisions have found that the NCE must be for-profit but the deployment can be non-profit (p. 3-4), and that the NCE must qualify as “new” but the deployment need not qualify as new (MAY182017_01B7203). Apparently, not all “new commercial enterprise” requirements defined for the NCE automatically apply to the JCE or other deployment activity. So a “commercial” requirement for further deployment does not automatically follow from the existing policy framework, but needs to be spelled out and justified. The July 24, 2020 Policy Manual update lacks such clarity or attempt at justification.
5. Neglecting to clarify which of the initial bases of eligibility in the initial deployment also apply to the further deployment, and why. The July 24, 2020 Policy Manual update gives five bullet points with requirements for the initial deployment, and then does not go on to specify which of these five USCIS thinks also apply to further deployment, and why. For example: “related to the actual undertaking of business activity.” The Policy Manual names this requirement for initial deployment and does not reference it again in the further deployment section. But we can’t tell – does that mean that USCIS understands that the “business activity” requirement is linked to the job creation requirement and thus no longer applicable, or did USCIS just neglect to mention it with respect to further deployment? As another example: the July 24, 2020 Policy Manual update adds language to state that secondary-market financial instruments do not satisfy three requirements for initial deployment. Two of the three requirements are specific to job creation. One requirement could apply independent of job creation. So can we conclude that the secondary-market financial instruments restriction is specific to initial deployment, and does not apply to further deployment after job creation? The industry is very confused about this. Many stakeholders are concluding that USCIS intended a blanket prohibition on purchase of secondary-market financial instruments, even after job creation and even after conditional permanent residence. If USCIS did not intend such a prohibition, it should clarify. If USCIS did intend a blanket restriction, that too should be justified so as not to appear arbitrary.

Redeployment is tough, because it’s a context that the people who drafted the statute and regulations did not anticipate. A framework of rules exists for initial deployment, not for further deployment. It’s understandable that USCIS should reference existing rules for one context in creating guidance for a new context. But this must be done with clarity about contextual differences, and admission that new policy is being created in the new context. New policy can be created for redeployment, just not made effective without notice and retroactively.

UPDATE: IIUSA and AILA ended up collaborating to submit a very good 30-page comment on USCIS’s Redeployment Policy Manual Update. I recommend their analysis, and hope that USCIS will read it carefully.

Policy Manual comment: Redeployment and regional center geography

We’re approaching the last chance to submit comments on the USCIS Policy Manual update on July 24 with “Clarifying Guidance for Deployment of Capital in Employment-Based Fifth Preference (EB-5) Category.” This page provides instructions for submitting comments, which are due “before” August 24. This post links to video of Carolyn Lee’s wonderful comment-writing workshop yesterday.

To prepare a rigorous policy comment for USCIS is tough hard work, especially for such a vexed issue as redeployment. See my draft comment copied below on the regional center geographic area issue. If you see any flaws, please reply to the post or email me so that I can revise.  I’ll try to find time this week to prepare a comment for at least one other aspect of the redeployment issue.

*** DRAFT COMMENT ****

To:                         USCISPolicyManual@uscis.dhs.gov

From:                    Suzanne Lazicki, Lucid Professional Writing, suzanne@lucidtext.com

Subject:                 USCIS Policy Manual, Vol. 6: Immigrants, Part G: Investors, Chapter 2

Comment Regarding : USCIS Policy Manual Volume 6: Immigrants, Part G, Investors, Chapter 2, Eligibility Requirements [6 USCIS-PM G.2], Part 2, as updated on July 24, 2020 by “Clarifying Guidance for Deployment of Capital in Employment-Based Fifth Preference (EB-5) Category”

Specific Portion of the Document: My comment relates to two paragraphs added to the Policy Manual [6 USCIS-PM G.2], Part 2 on July 24, 2020, quoted as follows (including footnotes).

Consistent with precedent case decisions and existing regulatory requirements, further deployment must continue to meet all applicable eligibility requirements within the framework of the initial bases of eligibility, [Fn. 38: See 8 CFR 103.2(b)(1). See Matter of Izummi (PDF), 22 I&N Dec. 169, 175-6, 189 (Assoc. Comm. 1998). See Chapter 4, Immigrant Petition by Alien Investor (Form I-526), Section C, Material Change [6 USCIS-PM G.4(C)] including the same new commercial enterprise  [Fn. 39 See INA 203(b)(5)(A), which refers to a single new commercial enterprise: “Visas shall be made available . . . to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise.”] and regional center. [Fn. 40 See 8 CFR 204.6(j) which refers to a single regional center: “In the case of petitions submitted under the Immigrant Investor . . . Program, a petition must be accompanied by evidence that the alien has invested, or is actively in the process of investing, capital . . . within a regional center designated by the Service.” See 8 CFR 204.6(m)(7) which refers to a single regional center: “An alien seeking an immigrant visa as an alien entrepreneur under the Immigrant Investor . . . Program must demonstrate that his or her qualifying investment is within a regional center.”] In addition, because a regional center has “jurisdiction over a limited geographic area,” [Fn. 41 See Section 610(a) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. 102-395 (PDF), 106 Stat. 1828, 1874 (October 6, 1992), as amended] further deployment must occur within the regional center’s geographic area, including any amendments to its geographic area approved before the further deployment. The further deployment, however, does not need to remain with the same (or any) job creating entity or in a targeted employment area.

For example, if a new commercial enterprise associated with a regional center loaned pooled investment capital to a job-creating entity that created sufficient jobs through the construction of a residential building in a targeted employment area, the new commercial enterprise, upon repayment of the loan that resulted in the required job creation, may generally further deploy the repaid capital anywhere within the regional center’s geographic area (regardless of whether it would qualify as a targeted employment area) into any commercial activity that satisfies applicable requirements such as one or more similar loans to other entities.

Recommended Change, and Reason: The July 24, 2020 addition to 6 USCIS-PM G.2 Part 2 that addresses a regional center’s geographic area creates a substantive requirement. This language should therefore be rescinded. USCIS Policy Alert states that the July 24, 2020 addition intends to provide “clarifying guidance” only, and intended “not changing any substantive requirements.”

The added language about regional center geography in further deployment is not mere clarification, because it does not follow from existing regulatory requirements and precedent decisions. The authorities cited in Footnotes 38-41 in the Policy Manual update do not in fact justify a regional center requirement geography for further deployment, as demonstrated below.

The regulations and Matter of Izummi specify the reason for initial deployment within a regional center’s geographic area: indirect job creation. Since further deployment occurs after the job creation requirement has been met, these authorities do not justify assuming that a requirement that exists in the context of job creation should also be applicable to further deployment.

The Policy Manual grants that further deployment need not satisfy other initial deployment requirements linked to job creation: the requirements to deploy with a job-creating entity and within a Targeted Employment Area. The Policy Manual does not explain why regional center geography would be an exception to the previously unspecified but logical and predictable rule that deployment requirements linked to job creation do not apply after the job creation requirement has been met.

The community could hardly have predicted a redeployment requirement that is not theoretically grounded in the existing regulatory framework. If USCIS retains this contradictory new redeployment geography requirement with retroactive application, the industry will be punished for having previously acted in reliance on the regulations and precedent decisions.

If USCIS wishes to create a geographic requirement for further deployment, it should use an appropriate process for a substantive change. Otherwise, the Policy Manual could replace rescinded language with a clarification – consistent with the cited authorities – that further deployment need not be within the boundaries of the regional center.

Authorities:

Matter of Izummi states in pertinent part:

Under the Immigrant Investor Pilot Program, if a new commercial enterprise is engaged directly or indirectly in lending money to job-creating businesses, such job-creating businesses must all be located within the geographic limits of the regional center. The location of the new commercial enterprise is not controlling.

A petitioner may not make material changes to his petition in an effort to make a deficient petition conform to Service requirements.

… The definition of “regional center” in 8 C.F.R. § 204.6(e) requires that the economic unit be involved in “improved regional productivity.” 8 C.F.R. § 204.6(m)(3)(i) states that, in order to gain approval as a regional center, an entity must describe clearly how it will promote economic growth through “improved regional productivity.” If neither the credit company nor the export-related businesses are located in the regional center, it is difficult to see how the productivity within the regional center is being improved. As the subsidiary credit corporation’s actual and proposed loan activities benefit companies outside the geographical area covered by the regional-center designation granted in this case, the petitioner must establish direct employment creation; he cannot rely on indirect employment creation.

Comment: Footnote 38 in the updated 6 USCIS-PM G.2 cites Matter of Izummi in support of the point that “Consistent with precedent case decisions and existing regulatory requirements, further deployment must continue to meet all applicable eligibility requirements within the framework of the initial bases of eligibility, including … regional center.” But the citation does not support the point. Matter of Izummi does not indicate that a regional center’s geographic area is an applicable requirement outside the context of job creation.

In the passages quoted above, Matter of Izummi states that the requirement for location within the geographic limits of the regional center applies to job-creating businesses, and exists in connection with counting indirect job creation. So defined, this geography requirement does not logically apply to further deployment not in job-creating entities, and after the job creation basis of eligibility has already been met.

The NCE in the Matter of Izummi case deployed some investor capital outside the regional center’s geographic area. Matter of Izummi does not state that such initial was problematic in itself, but in connection with reliance on indirect job creation.  Matter of Izummi states that if investor capital is originally deployed outside of the regional center’s geographic area, the consequence is that the investor must then meet the employment requirement with direct employment creation. Since even initial deployment can be outside a regional center’s geographic boundaries provided that it does not rely on indirect job creation, according to Matter of Izummi, how can the Policy Manual now require further deployment that does not rely on any job creation to be within the geographical area covered by the regional-center designation? Such a policy creates a requirement that not only did not previously exist for redeployment, but did not even previously exist as an unqualified requirement for the initial deployment.

Perhaps the July 24, 2020 addition to 6 USCIS-PM G.2 Part 2 assumes a post-job-creation pre-CPR regional center geography requirement based on assuming that further deployment outside regional center geography would necessarily constitute a “material change.” However, such a material change assumption is not warranted. Further deployment outside a regional center’s geographic area does not meet the Matter of Izummi definition of “material change” as quoted above: change made in an effort to make a deficient petition conform to Service requirements. If capital invested in Minnesota Regional Center LLC is initially deployed according to plan in Minneapolis, creates jobs in Minneapolis as described in the I-526 petition, and subsequently further deployed in Dallas, the Dallas deployment obviously does not address a deficiency in the initial petition. Furthermore, the Dallas deployment does not result in changed circumstances predictably capable of affecting the decision about I-526 eligibility (Kungys v. United States). The regional center geography requirement pertains in context of the job creation requirement, and the job creation basis of eligibility is not implicated in further deployment.  Regional center geography could only be a material change issue for further deployment if it could be tied to an eligibility ground other than job creation. But the statute, regulations, and precedent decisions do not specify any regional center geography requirement divorced from job creation. Rather, they are united in linking deployment geography requirements to job creation eligibility requirements.

8 CFR 204.6(m)(7) states:

An alien seeking an immigrant visa as an alien entrepreneur under the Immigrant Investor Pilot Program must demonstrate that his or her qualifying investment is within a regional center approved pursuant to paragraph (m)(4) of this section and that such investment will create jobs indirectly through revenues generated from increased exports resulting from the new commercial enterprise. [Emphasis added to mark text omitted from the Policy Manual citation.]

Comment: Footnote 40 in the updated 6 USCIS-PM G.2 cites 8 CFR 204.6(m)(7) in support of a regional center geography requirement for further deployment. But the citation does not support the point. Footnote 40 places a period after the words “within a regional center” while omitting the second half of the cited sentence – the part that links the “within a regional center” requirement to the indirect job creation requirement. When viewed in full, 8 CFR 204.6(m)(7) does not clearly support a conclusion that a regional center geography requirement exists distinct from the job creation requirement. Matter of Izummi references 8 C.F.R. § 204.6(m)(3)(i) in the citation quoted above to support a conclusion about job creation requirement, with no suggestion of an abstract regional center geography requirement apart from job creation.

8 CFR 204.6(j) states:

(j) Initial evidence to accompany petition. A petition submitted for classification as an alien entrepreneur must be accompanied by evidence that the alien has invested or is actively in the process of investing lawfully obtained capital in a new commercial enterprise in the United States which will create full-time positions for not fewer than 10 qualifying employees. In the case of petitions submitted under the Immigrant Investor Pilot Program, a petition must be accompanied by evidence that the alien has invested, or is actively in the process of investing, capital obtained through lawful means within a regional center designated by the Service in accordance with paragraph (m)(4) of this section. The petitioner may be required to submit information or documentation that the Service deems appropriate in addition to that listed below. [Emphasis added to mark text omitted from the Policy Manual citation.]

Comment: Footnote 40 in the updated 6 USCIS-PM G.2 quotes a portion of 8 CFR 204.6(j) (the portion not underlined above) to support a regional center geography requirement for further deployment. But the citation does not support the point. Footnote 40 omits the context: 8 CFR 204.6(j) describes “Initial evidence to accompany petition.” 8 CFR 204.6(j) explicitly describes initial evidence to be submitted with the Form I-526 petition to demonstrate investment of lawful source of funds by an EB-5 investor in a NCE that will create jobs. 8 CFR 204.6(j) gives no reason to assume that these initial I-526 evidence requirements for the job-creating investment would also apply to a different context: a stage considerably after the I-526 filing that deals with reinvestment by the NCE of previously-deployed capital in an enterprise that need not create jobs.

Section 610(a) of Pub. L. 102-395, the statute that established the regional center program, states:

SEC. 610. PILOT IMMIGRATION PROGRAM.—(a) Of the visas otherwise available under section 203(bX5) of the Immigration and Nationality Act (8 U.S.C. 1153(bX5)), the Secretary of State, together with the Attorney General, shall set aside visas for a pilot program to implement the provisions of such section. Such pilot program shall involve a regional center in the United States for the promotion of economic growth, including increased export sales, improved productivity, job creation, and increased domestic capital investment.

This statute was subsequently amended by Pub. L. No 107-273, Sec. 11037(a)(3), 116, which states:

A regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. The establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from aliens, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have.

Comment: Footnote 41 in the updated 6 USCIS-PM G.2 cites Pub. L. 102-395 to support the claim that “In addition, because a regional center has ‘jurisdiction over a limited geographic area,’ further deployment must occur within the regional center’s geographic area, including any amendments to its geographic area approved before the further deployment.” But the point does not unambiguously follow from the citation.

Pub. L. No 107-273 describes Congressional intent for a limited regional center geography: to concentrate pooled investment such that capital investments from aliens will create positive economic effects, including jobs created directly or indirectly, in defined economic zones.

This intent is addressed with the initial deployment of alien investment, which occurs within the regional center and results in the required economic effects, including job creation, that are calculated at the I-526 stage and verified at the I-829 stage.

The statute does not suggest that Congress anticipated some aliens needing to create more economic impact than others within the regional center, based on the accident of their place of birth and excess visa demand.  The statute does not suggest that Congress intended economic impacts dependent on serial deployment of an investment in multiple commercial enterprises within the regional center. By requiring further deployment to occur within the regional center’s geographic area, the updated Policy Manual creates a new eligibility requirement for compound economic zone impacts. The geography-specific requirements and impacts would be unique to investors from backlogged countries, and dependent on time delays that Congress did not intend.

Naturally, a defined economic zone would benefit from multiple deployments of capital investment where each repeat deployment is required once again impact that zone. Creating a geographic area requirement for further deployment would build on Congressional intent for the initial deployment, and could be economically beneficial (if practically problematic, as discussed in other comments).  However, such a requirement does not currently exist, as demonstrated above. The existing statute as amended and interpreted by the regulations and Matter of Izummi does not include a regional center economic impact requirement separate from and subsequent to the job creation requirement. The language in the July 24, 2020 update to 6 USCIS-PM G.2 containing this requirement should therefore be rescinded. If USCIS wishes to create a geographic requirement for further deployment, it may do so with the proper process for substantive change.

USCIS Funding, Furloughs, and Fee Rule

8/25/2020 Update: USCIS Averts Furlough of Nearly 70% of Workforce

I pause for a moment to thank all USCIS employees who are at work today. Though I may criticize your results, the very fact of working deserves credit. We appreciate you acting as civil servants, persevering to do your jobs even as furloughs have been threatened since May and could start August 31. That is, unless the public takes notice, your bosses start acting responsibly, and/or lawmakers decide they want to protect you more than they want someone else to get blamed for damage.

It’s heartening to see a steady stream of EB-5 decisions coming out of IPO, even under these trying circumstances. Thank you, adjudicators, for your service. Considering the huge investment in time and money that went into building and training staff for EB-5 adjudications, and the billions of dollars in foreign investment hanging in the balance, I sincerely hope that USCIS will get its house in order and keep all its people working, and EB-5 working in an economy that desperately needs it.

For the latest updates on the USCIS funding request and furlough situation, and ideas for how to advocate, see the AILA featured issues page on USCIS Budget Shortfalls and Furloughs. With so many issues competing for attention from Congress, representatives need to hear from people who care about averting disaster at USCIS.

To understand the history behind USCIS’s budget request and furlough threat, see the testimony at the House Judiciary Committee Hearing on Oversight of USCIS on July 29, 2020. (The recording is worth hearing, too.)

The testimony gives a well-documented indictment of USCIS management of petition processing. The testimony looks at petition data to demonstrate that USCIS has not actually suffered from falling fee revenue overall, as it claims (IIUSA), but rather from falling efficiency (AILA) and a faulty fee-setting method, obsolete funding process, and lack of fiscal oversight (even pro-immigration-barrier CIS identified this as a problem).

A witness representing AILA who worked until recently at USCIS noted that:

The Homeland Security Act established USCIS in 2003 to focus exclusively on the administration of immigration benefit applications and established Immigrations and Customs Enforcement (ICE) and Customs and Border Protection (CBP) to handle immigration enforcement and border security functions. Yet, the current leader of USCIS and DHS, Kenneth Cuccinelli claims that “we are not a benefit agency, we are a vetting agency.”30 So, as the agency collects money paid by its customers for the adjudication of applications, rather than doing its statutorily mandated work, I saw firsthand prioritization on adding layers of screening, such as social media vetting, hiring more fraud detection personnel, unnecessary interviews, as well as USCIS personnel being detailed to other agencies and spending more time on enforcement priorities. Yet, now USCIS leadership simply gets to put its hand out and ask for more than $1 billion of tax payer money, while at the same time passing off the costs of its own inefficiencies to its customers by proposing to significantly increase fees and adding a 10 percent surcharge on top of that to pay back its bailout and furloughing hard working Americans.

But even if USCIS arguably does not actually need and certainly does not merit the emergency supplemental funding that it’s demanded as a condition for averting staff furloughs, I agree with the union leader who made this plea to Congress:

Our Union fully acknowledges and supports the concerns raised by many Members of Congress: that there needs to be more transparency and fiscal accountability by USCIS; that the funding structure of the Agency needs to be reviewed and possibly overhauled – with a part of the operating costs to be met through user fees and part to be met through appropriated funds; that user fees should not be so unreasonably high that applicants cannot afford to pay them; that there need to be “guardrails” to ensure that all funds are utilized for the necessary operations of USCIS and not ever re-programmed or transferred to other federal agencies for any other purpose.

There are also legitimate concerns about many of the Administration’s policies that have hindered, deterred or blocked many forms of legal immigration…. But these concerns should not become hard and fast “conditions” for whether or when and how emergency funding should be made available. Instead, they should inform and frame the agenda for priority action by the next Congress and Administration, which will be elected by the American people to lead and unite our country in facing the great challenges of the troubled times in which we live.

Congress is currently putting together legislation to bail out USPS, another agency that’s facing crisis through every fault of its own. Many people realize that whatever the source of USPS’s current problems, our country simply cannot afford for it to fail. Can we ask Congress to consider USCIS at the same time? Some good legislative language already prepared:
H.R.7508 – To provide supplemental appropriations to U.S. Citizenship and Immigration Services, and for other purposes, and
H.R. 5971: The Case Backlog Transparency and Accountability Act of 2020.

[8/22 Update: Rep. Zoe Lofgren introduced a bill that proposes to help USCIS solve its budget problems for itself  in the sensible way — not by demanding a government handout but by increasing fees and demand for an existing service. H.R.8089 The Emergency Stopgap USCIS Stabilization Act passed the house on August 22.]

The emergency funding and furlough issue applies to USCIS as a whole, not specific to the Investor Program Office and EB-5 processing. We don’t know how many, if any, furlough notices were sent to IPO staff. However, IPO is certainly poised for budget issues. For the detail of the cracks in the planning for EB-5 adjudications specifically, see my comment to DHS in 2019 on the Proposed Rule to set new I-526 and I-829 form fees, and DHS’s response to my comment in the Final Fee Rule pages 226-227 (regarding I-526 processing) and 268-269 (regarding I-829 processing). The issues that I identify in my comment will remain an on-going challenge. Budget problems will naturally result when an agency relies on unrealistic volume forecasts, declines to make price increases sufficient cover anticipated cost increases, declines to budget for the cost of pending inventory whose associated fees were already spent, and operates on a Ponzi system that depends on continually incoming receipts to cover costs.

USCIS website Q&A on redeployment

USCIS has updated its website with a new page for Questions and Answers: EB-5 Further Deployment.

USCIS did not the announce that the page exists. I just happened to find it because I’m vigilant. The page contains new guidance and rules that USCIS apparently wanted to exist but to remain unknown to us. Like the policy manual update, the Q&A page provides answers that are either vague or blithely arbitrary, with no attempt at justification with reference to the existing statutory and regulatory framework, or even the policy manual. I will not repeat what the page says, but trust that lawyers will read it and give of their time to fight for justice and clarity.

A policy manual update and Q&A on redeployment urgently needed to exist. I give USCIS credit for attempting to provide them. If only the work had been done with thought and care, with an effort at justification and consistency.