USCIS Policy Manual EB-5 Updates (regulations, reauthorization, indebtedness, CSPA)

The USCIS Policy Manual is a fluid online document that gets edited periodically, with and without notice, which is exciting and disconcerting. Being someone who likes to know the rules, I save copies of the PM at different dates, and redline changes. In July 2021, USCIS made several PM updates that affect EB-5. However, redline shows that the updates are minor, and reflect policy that’s been in place for awhile already. Here’s my document highlighting specific EB-5 content added to the PM in July 2021.

1. Regulations update. I’d wondered when USCIS would acknowledge the Behring lawsuit win by revising policy language about EB-5 investment amounts and TEAs. On July 15, 2021, USCIS made a minimal Policy Manual revision: simply copying and pasting the same “Alert” about the Behring lawsuit that’s on the USCIS website EB-5 homepage into the beginning of Policy Manual Volume 6 Part G, Chapters 1, 2, 3, 4, and 5. USCIS did not revise the body of the PM.  So if you go to Chapter 2 today, the body of the chapter still says that the EB-5 investment amount since November 21, 2019 is $1.8 million, or $900,000 in a USCIS-designated TEA, but the header alert clarifies that the required EB-5 investment amount is $1.0 million, or $500,00 in a state-designated TEA and “In other words, we are applying the regulations in effect before Nov. 21, 2019 in this chapter.”  With this update, USCIS takes another important step to officially acknowledge the Behring lawsuit outcome. At the same time, the minimal note implies that someone does not expect the outcome to last long enough to justify actually revising rather than merely footnoting the old policy language.
2. Regional Center lapse update. Also on July 15, USCIS acknowledged the regional center program expiration by adding an “Alert” to the beginning of Policy Manual Volume 6 Part G, Chapters 1, 2, 3, and 4 (but not Chapter 5 on removal of conditions). Again, the body of the PM was not revised, presumably reflecting hope that the RC program expiration also will not last long. The “Alert” added to the PM is identical to the first half of the “Alert” put on the USCIS website regional center page. The PM alert does not include the language about RFE response, I-829, or I-485.
3. CSPA: On July 26, USCIS announced a Technical Update – Adding References to the EB-5 Visa Program in Child Status Protection Act Guidance. It appears that the single change was to add the words “Immigrant Petition by Alien Investor (Form I-526)” to the list of applicable underlying forms for status adjustment.
4. Indebtedness: On July 22, USCIS announced a POLICY ALERT – Immigrant Investors and Investment of Loan Proceeds. Redline shows that this update did no more than to replace a couple words in the Policy Manual with the word “indebtedness,” and to add a footnote that “USCIS no longer follows its interpretation of indebtedness as including the investment of loan proceeds as of November 30, 2018, the date of the district court decision Zhang v. USCIS, 978 F.3d 1314 (D.C. Cir. 2020).” Since USCIS lost the Zhang court case in November 2018 and lost its final appeal of that decision back in January 2019, USCIS should have been “no longer following its interpretation” for over two years now already. The new Policy Manual footnote is merely a belated acknowledgement of that fact. See also the “Class Action Member Identification Notice” that’s been on the USCIS website EB-5 homepage for a couple years now. And more to the point, see Administrative Appeals Office decisions that sustain appeals of I-526 denials over loan proceeds. For example: JUN162021_01B7203 and MAR242021_01B7203. If you are a member of the class whose I-526 was “denied on the sole basis of investing loan proceeds that were not secured by their own assets,” you have had and still have the right to get that denial vacated and reconsidered.