New EB-5 Q&A from USCIS

In my post Report on Nov 2020 IPO Non-Engagement, I pointed out that the November 11 EB-5 engagement presentation avoided addressing industry questions. I now see that on December 16, USCIS took a step to compensate by publishing EB-5 General Questions and Answers (updated Dec. 2020) on the EB-5 Resources page. This 7-page PDF selects a portion of questions asked (e.g. from IIUSA’s list), doesn’t necessarily answer them, and was published with no announcement in a place where even I took a month to notice it. But nevertheless, it’s seven pages of something like communication with the industry, and we rarely get even that much, so thank you USCIS. I appreciate this step!

Visit the USCIS website to review the full Q&A, which is indeed worth reading. The following is my biased summary of the Q&A content.

I-526

1. An I-526 expedite approval merely expedites assignment of the I-526, not adjudication time. USCIS cannot provide specific processing times for adjudication of an “expedited” I-526.

2. The Q&A tries to justify the practice of requesting I-829 evidence in the context of I-526 adjudication.

3. IPO assesses visa availability monthly.

4. I-526 workflows are adjusted monthly based on visa availability.

5. USCIS does not have or plan to develop technology that would allow I-526 petitioners to incorporate project-related documents submitted with a pending or approved I-924 (I-526 exemplar) rather than submit duplicative documents with each I-526. USCIS is “open to exploring ways to achieve efficiencies within our existing systems” but lacks budget to improve the systems. [Who did not use the fee rule process to request needed budget, I wonder.]

I-829

6. Read the Q&A for a detailed answer to this question: “What steps should a petitioner take to add an eligible derivative to a Form I-829?”

7. After denying an I-829 petition, USCIS will generally wait until after the initial motion period to issue a NTA with immigration court, but reserves the option to refer cases to ICE earlier.

8. Fraudulent activity in a project has a bearing on I-829 adjudication if it prevents satisfying all investment, sustainment, and job creation requirements for removing conditions.

9. I-829 receipt notices issued in July 2020 were not intended to extend CPR status, just to replace possibly missing notices.

Regional Centers

10. There is no timeframe for posting regional center termination letters since 2018, which are still “in the queue to be reviewed by USCIS FOIA specialists.” [So much for transparency. The entire unredacted immigration record for Kamala Harris’ mother was posted by FOIA within a month of Harris’ nomination, but it takes two years and counting to review regional center termination letters—a type of record previously cleared for routine release, and obviously serving an integrity purpose.]

11. “We will consider your request, but USCIS does not currently have plans to proactively publish regional center designation letters.”

12. USCIS imposes a duty for RCs to monitor and oversee investment activities, but declines to specify what this duty entails because “it is not possible to do a one-size-fits-all checklist.” [But such checklists must exist behind the scenes, unless USCIS is simply arbitrary and capricious in regional center terminations. Assuming that there’s some method and consistency to USCIS oversight, then USCIS must have some specific and defined criteria for what Regional Center monitoring, oversight, and activity look like in practice. And given that, why not come out and tell Regional Centers the criteria by which they will be judged?]

13. The Q&A takes the industry question “When will anxious stakeholders learn more about the results of the submitted comments on the policy manual update on redeployment?” and answers that there’s no timeline to advance the universally ignored Advance Notice of Proposed Rulemaking from 2017 on the regional center designation process. We see you dodging the question, USCIS.

14. Since January 5, 2021, the newest Form I-924A version (dated 11/21/2019) must be used.

15. The Q&A states that in fact “there is no requirement that an approved regional center must have affiliated I-526s filed within a three-year period or lose designation.” [This contradicts the evidence of regional center termination letters that such a metric was applied in practice at least through 2018. But good to hear this statement, since the 3-year metric was particularly unfair and harmful for regional centers in distressed and rural areas.] The Q&A also clarifies that I-924 regional center processing times are not actually 5-8 years, though the USCIS Processing Times Page reported them as such until recently due to what’s now acknowledged as a reporting error.

16. Regarding interfiling of project status updates, the Q&A gives this helpful information: “Updates and other correspondence are received in our mail room. We keep the envelope or shipping label, we stamp the date we received the correspondence, and we insert the documents into their corresponding file(s). We randomly sample the work to ensure the documents were properly interfiled.”