Updates (reauthorization, regulations litigation, FY2021 Q3 processing data)
August 24, 2021 18 Comments
Reauthorization Update: On Wednesday 8/25 at 12PM EDT, the EB-5 investor organization AIIA will hold a webinar to update stakeholders on efforts for legislation to reauthorize the regional center program and protect investor interests. Register here to participate live in the AIIA webinar (or check the Youtube channel later for a recording). See also the most recent AIIA newsletter. AIIA has been unusually open about sharing whatever information they can gather from Congressional staffers and industry contacts about EB-5 legislation, and I recommend the resource. I am not a primary source for advocacy info or opportunities.
Regulations Update: USCIS has indicated that it will appeal the Behring Regional Center decision, which restored the old $500,000 investment amount and TEA rules. For more background, see this EB5 Investors Magazine article and this article by Behring Regional Center. It seems clear that the EB-5 investment amount will not change by regulation any time soon, since court cases take time. USCIS will likely continue to accept I-526 based on $500,000 for some time. However, will USCIS go on to approve I-526 filed today at the $500,000 level? Discuss with your lawyer what will happen to eligibility for pending I-526 if USCIS wins the appeal, and the new regulation thus not vacated after all.
Processing Update: Meanwhile, I continue to get real-time updates that IPO has been handling only a handful of I-526 petitions per day. But thanks to the lack of FIFO discipline, IPO is assigning new as well as old cases, and a number of I-526 filed in late 2019 are already getting reviewed. So some direct EB-5 petitioners will enjoy relatively short I-526 processing times ā a welcome development so far as it goes. EB-5 integrity would get such a boost if we could expect that every I-526 would get USCIS attention in months, not years! So far, the official USCIS Immigration and Citizenship Data page reinforces what my leak says: that productivity at the Investor Program office has still not improved under the Biden administration, and in fact has gotten worse for I-829 as well as I-526 through June 2021 — according to the FY2021 Q3 update. I continue to wait for new leadership at IPO to address this trend. (I am not reporting on receipts in the FY2021 Q3 USCIS report, because I note an error. The report is missing hundreds of I-526 receipts that were received during the reporting period on June 29 and 30, but apparently physically entered into the case tracking system in the first days of July, outside the reporting period.)
EB-5 Updates 
Thanks, Suzanne for all the great work that you do. The silence on I-485s is deafening while this uncertain holding pattern continues. I am guessing there has been no news on what the fate of those waiting (pre-sunset) in the system will be? You would think that USCIS has had enough time to get their act together. The Biden administration has yet to deliver on anything constructive!
Hi Suzanne, thank you again.
I think the USCIS decision to appeal Behring decision is a blessing in disguise. Why would they appeal something if that thing is dead? IMO, they are expecting the EB5 to be reauthorized in some form, and when they do they want it to be at a higher amount if possible.
I hope “Veedster’s hunch proves right.
Hello Suzzane,,
If possible can you share any RFE’s that are recently issued for direct EB-5 issued recently in 2021 for 2019 cases, like you have shared the denials before in your blog, that will be helpful.
Thanks
Hello Lokesh,
I think most i526 RFEs (for both direct and RC investments) related to source of funds. USCIS nowdays thinks that your home country’s tax forms/papers are incuficient as a proof that your funds acquired by legal means. In response to my RFE, I’ve provided them with detailed description of my every business transaction (contracts, invoices, bank statements, etc) for a period of 3 years. It took over 500 pages and 1.5 months of hard audit work. Most eb5 investors I know went through a similar difficult process to prove that they’re elegible.
hello ,
thanks for your reply.
What type of Eb-5 did you do? is it direct eb-5?
what is your country of origin? what is your PD?
How long did it take for USCIS to process your application?
what type of. processing are you doing? change of status or consular processing?
thanks
USCIS has said that I-829 processing is not affected by the RC lapse. I was wondering if any RC I-829s have been adjudicated since June 30th. Can anyone here confirm movement on their I-829 applications since June 30th?
They do process I-829s. I got mine finally adjudicated on August 6th.
Hey Drew, congrats. Do you mind sharing the month and year of your application? Thank you.
Congratulations
Could you please share the when you had submitted the I-829.
An interesting issue is whether the investors who filed I-526s with $500K after the new USCIS regs mandating $900K was found to be unlawful due to a process issue will be denied if USCIS wins on its appeal. Or if not an outright denial, will USCIS even allow the petitioners to come up with additional $400K and supplement their petitions?
That’s the question I want answered as well. I will post expert opinions on this question as I hear them.
I was listening to one of those webinars that week. Answering a question by a potential investor, they made it clear, that in the case the Behring decision is appealed and won, the client would have to increase the amount or withdraw his application.
IANAL, but in my opinion all $500K I-526s filed before a successful appeal would be still valid. For them to be invalid, USCIS should have requested a stay of the sentence pending appeal, which it has not done.
Requested, and been granted by the judge, of course. Requesting in itself is not enough! š
Agree.
https://vimeo.com/593400857 Please watch this.
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