USCIS website alert update: I-924A

Thank you to Carolyn Lee for noticing that the USCIS EB-5 page was quietly updated yesterday 12/20 to include this paragraph in the alert on regional center program expiration:

We will still accept and review Form I-924A, Annual Certification of Regional Center, including those filed on or after July 1, 2021. Regional centers should continue to submit Form I-924A, for fiscal year 2021.  

Regional centers have been asking about I-924 since September, and USCIS waited until Christmas week, just a few days before the deadline to file I-924A, to say yes, we do want you to file this form and especially to send us the fees, even though the program is expired and we’ve said we’re not reviewing I-924A. Happy Holidays.

The only nice thing I can think of to say is that the request for I-924A filings can only be based on USCIS assumption that the program will be revived. And if USCIS is making that assumption for I-924A purposes, they could hardly justify making the contrary assumption in context of deciding whether to keep holding regional center investor petitions.

How and why RC program law affects RC petition processing

I observe confusion about how and why regional center program expiration affects various stages of the EB-5 process.

What specifically is the “lapsed statutory authority” that USCIS cites as the reason for not accepting regional center I-526 and not acting on pending regional center I-526 or I-485, but continuing to act on I-829 for everyone (in theory)?

What specifically is the “legislative action extending this category” that the Visa Bulletin states as necessary before I5 and R5 visas may be issued overseas, or final action taken on adjustment of status cases?

What all is to blame for the fact that regional center I-526 petitions are currently not being processed and visas not issued, and – therefore – what are the possible options to change the situation?

To help think about these questions, let’s back up and look at the law and the process.

The Law

Statutory authority for the regional center program came from Section 610(b) of Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (Public Law 102-395). You can review the 1993 law (see PDF p 47), or even better this section from USCIS EB-5 training materials that presents the text together with amendments up to 2012. I’ve copied the 1993 language below, with underlines added at key points. This is it: three short paragraphs upon which stand billions of dollars. After the quote, I comment on significant points in the regional center statute.

Quoted from Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 SEC. 610. PILOT IMMIGRATION PROGRAM-
(a) Of the visas otherwise available under section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)), 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 regional productivity, job creation, and increased domestic capital investment.
(b) For purposes of the pilot program established in subsection (a), beginning on October 1, 1992, but no later than October 1, 1993, the Secretary of State, together with the Attorney General, shall set aside 300 visas annually for five years to include such aliens as are eligible for admission under section 203(b)(5) of the Immigration and Nationality Act and this section, as well as spouses or children which are eligible, under the terms of the Immigration and Nationality Act, to accompany or follow to join such aliens.
(c) In determining compliance with section 203(b)(5)(A)(iii) of the Immigration and Nationality Act, and notwithstanding the requirements of 8 CFR 204.6, the Attorney General shall permit aliens admitted under the pilot program described in this section to establish reasonable methodologies for determining the number of jobs created by the pilot program, including such jobs which are estimated to have been created indirectly through revenues generated from increased exports resulting from the pilot program

Discussion of the law

The 1993 law said “shall set aside visas” for a program that “shall involve a regional center.” Details here and there in the law have been amended over time, but note the key point that the regional center program difference is baked into visas. The Visa Bulletin therefore sets specific categories for regional center applicants — I5 and R5 – and stops issuing visas in the I5 and R5 categories whenever the regional center program authorization expires.

The 1993 law specified a time limit on setting aside visas for the regional center program: “five years.” It’s those two little words “five years” that have been replaced over and over again since 1993, in successive laws reauthorizing the regional center program. Reauthorizing legislation started by substituting the original “five years” with new time durations, and eventually moved to providing calendar date deadlines. The most recent reauthorization in 2020 simply said: “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.’” When no new law appeared to substitute the June 30, 2021 date, then regional center visas became unavailable as of July 1, 2021, and all the processing stages leading up to visa issuance therefore screeched to a halt. At its most basic, regional center program authorization has just meant giving a new expiration date in place of the five-year time limit in the 1993 law. (Here’s my log of reauthorizations to date.)

The 1993 law specified that regional center category visas are for “such aliens as are eligible for admission under section 203(b)(5) of the Immigration and Nationality Act and this section.” The law further specified that the government “shall permit aliens admitted under the pilot program described in this section to establish reasonable methodologies for determining the number of jobs created by the pilot program, including such jobs which are estimated to have been created indirectly.” These words help explain why regional center program authorization is an issue leading up to and at the visa stage, but not a problem for people who have already been admitted to the U.S. on a regional center visa, and now in the Conditional Permanent Resident or I-829 stages.

The key word is “admission” i.e. starting U.S. residence on an EB-5 visa. The 1993 law puts pre-visa regional center investors in a vulnerable position, because it specifies that they must be “eligible for admission” under the core EB-5 program at INA 203(b)(5) AND “this section” i.e. the temporary regional center program authorization. Lawmakers in 1993 surely did not foresee that inefficient USCIS processing and backlogs would insert many many years between (A) investing in the regional center program and (B) becoming eligible for admission to the U.S.  Proposed “grandfathering” language now seeks to rectify that vulnerable long gap between A and B by specifying that the investor eligibility can rely throughout the process on the statutory authority that existed at Point A: the time of filing I-526. By simply focusing on eligibility at the time of admission — the visa stage that can be delayed for years into the EB-5 process — the 1993 law provided no such protection.

Meanwhile, the 1993 law does at least effectively lock in/grandfather regional center eligibility from the time of admission on a visa. The government “shall permit aliens admitted under the pilot program described in this section to establish reasonable methodologies for determining the number of jobs created by the pilot program, including such jobs which are estimated to have been created indirectly.” If you were admitted under an I5 or R5 visa, you may then go on to remove conditions on that visa under the regional center rules that apply to that visa, including using economic methodologies to count indirect jobs. The 1993 law permits you to do so because you were admitted to residence under the RC program. Based on the statute, EB-5 policy confirms that even following loss of regional center sponsorship, “The conditional permanent resident investor will continue to have the opportunity to demonstrate compliance with EB-5 program requirements, including through reliance on indirect job creation.”

The Process

The following figure summarizes stages and actions in the EB-5 process. Under the law as described above, the regional center applicant needs the regional center program to stay authorized throughout the grey-shaded stages, such that the applicant stays eligible until the point of being able to cash in on regional center eligibility by getting an I5 or R5 visa at Step 4.

Suggested “grandfathering” language for EB-5 legislation would change this risky scenario by clarifying the law to lock in regional center eligibility based on regional center program authorization status at Step 1. Then future investors could start the process with confidence, knowing that their future eligibility at Step 4 — whenever that time comes — will still follow the rules and authorities that existed at Step 1. The proposed grandfathering language does not merely protect existing applicants (indeed, it’s irrelevant for many past investors if there’s a significant near-term reauthorization), but essential to protect all incoming demand from the future threat of expiring legislation. AIIA’s suggested grandfathering language proposes to amend the INA as follows: “(E) In the case of statutory provisions that establish temporary authority for visas to be made available under paragraph (A) to beneficiaries of such authority, the suspension or termination of such temporary authority shall not suspend or terminate the allocation of visas to such beneficiaries, provided that the petition seeking such allocation was filed when the authority was in effect.”

Note that all regional centers have a self-interest in ensuring that such protective language gets included in any new reauthorization legislation. Future investors will want to avoid the vulnerability to change that’s been on display during the current lapse. Who will commit to a program that’s liable to disappear before it’s needed? Eligibility should be securable at the time an investor commits to the regional center program, and such assurance requires an addition to the law.

Implications

I hope that looking at the regional center statute and contemplating the EB-5 process chart helps to clarify thinking about where we are now, and possible paths forward.

The key lesson that I take: the core problem in regional center program expiration is loss of authority to issue regional center visas and loss of eligibility to receive regional center visas. The current stop to all RC processing leading up to visa issuance is a side effect of that core problem, not the problem itself. Further, the authority to issue RC visas and eligibility for RC visas is based in statute, and thus the solution must be statutory: to get a law passed that renews authority and eligibility for regional center visas. It would not be a solution to simply force USCIS to receive and process regional center I-526 and I-485, and Department of State to process visa applications. If we did that, we could force USCIS and DOS to start denying applications. Because how could agencies possibly approve applications for benefits that don’t currently exist? To quote EB-5 immigration attorney Ron Klasko, from an email kindly sent to me on this topic: “I can advise you of the general legal principle that prevents a government agency from approving a petition or a visa unless there is statutory or regulatory authorization to do so.”

USCIS and Department of State do not make laws or create benefits, they just administer them. By choosing to pause regional center application processing, USCIS and DOS chose to put the regional center patient in a coma, pending a RC program revival by Congress. The regional center processing coma is not the problem in itself – in fact it’s a kindness, to defer the final action of death.  In that case, begging or suing USCIS to resume processing RC petitions during an RC program expiration would not be a solution, and indeed would harm any RC applicants who do not want denials.

Congress must pass a law that enables EB-5 visas to be issued in the regional center categories. A law that reauthorizes the regional center program would accomplish that purpose. A reauthorization law will inevitably include many provisions in order to pass, but the minimum necessary content to protect existing investors is an RC program expiration date that’s in the future. Reauthorization legislation is the top priority, and Plan A. If Congress does not act to reauthorize the RC program for the future, Congress should at least pass a law that keeps faith with past investment by allowing applicants who filed I-526 while the regional center program was authorized to remain eligible for regional center visas. The one-sentence grandfathering proposal quoted above could be enough, if a minimal Plan B becomes necessary. So far, I have heard no Plan C path to regional center visa issuance that sounds promising to me. I do not know what litigation argument could work for visas in light of what’s in the law and EB-5 process as reviewed above. The top EB-5 lawyers will try their creative best if necessary, but do not speak optimistically about litigation prospects in lieu of legislative solution. The one RC visa lawsuit attempt I’ve read so far did not make sense to me (except for the couple pages of it that were copied from my blog). But if you can see a solid Plan C option, or note any problems with my analysis, please comment, and make your case in detail. Or email me at suzanne@lucidtext.com.

Updates: I’ll continue to update this final section with other ideas as they occur to me, or suggested in the comments. Lawyers, please weigh in on whether there’s any traction here.

1. Regional Center Investor A has a clear and well-documented case that “I would have had a regional center visa by now were it not for egregious government agency processing delay.” Is that an argument that can be taken anywhere or accomplish anything? If so, with whom to pursue it?
2. Is the USCIS “material change” policy the primary reason that people who filed I-526 as regional center investors cannot possibly get direct EB-5 visas? If so, is there any hope of or path to a policy-level remedy of changing the material change policy?

Call for investor stories to support RC program authorization

I do not have definitive news about regional center program reauthorization, but will pass on action items suggested by EB-5 advocates. (Personally, I have decided to celebrate EB-5 legislation as a miracle once it happens, and to avoid predictions before it happens. When a miracle is a necessity, it’s risky to comment in advance on its probability and timing.)

The first condition for EB-5 legislation is a vehicle to which it can attach, and that condition has not been available yet in our crazy Congress. The date for one hoped-for vehicle — the FY2022 omnibus appropriations — remains unknown. It was due by December 3, but political news shows that Congress is still heading to miss that deadline (due to issues much larger than EB-5). (12/3 UPDATE: We now know that a new CR has extended the deadline to February 18, 2022, and per usual is a brief bill with no special interest content, including no RC program authorization.) But knowing the new CR deadline will still not support predictions about EB-5 legislation, since I won’t know whether the new CR is the last CR, or whether appropriations remains the best/nearest available vehicle for EB-5 legislation. Everyone in the EB-5 industry feels the urgency, and will at least try for nearer opportunities as the appropriations act opportunity gets deferred by Congress. (FYI, here again is my Excel file logging the recent history of appropriations bills.)

 “Congress’s goal in December: Avoid shutdown and default,” reported The Hill yesterday. If only the headline referred to avoiding shutdown of the job-creating regional center program, and avoiding U.S. government default on the EB-5 visa promise to over 80,000 past foreign investors whose over $40+ billion investment is now at work in the U.S. economy! Those are major concerns, yet overshadowed. The shutdown and default threats occupying Congress involve funding for the entire federal government and the $20+ trillion national debt. Not to mention dealing with President Biden’s social spending and climate bill priorities.  No wonder EB-5 struggles for attention.

With the nation’s solvency and Biden’s legacy teetering on the brink, what room is there for any other concerns? And yet I notice the disproportionate power of catchy individual stories. Even reading The Hill, I have had to scroll far down the page to get to major news about the national debt and Build Back Better, down below headlines about the wheelchair shoplifter and Lindsey Lohan’s engagement. People respond to stories about individual experience, especially when featured in print and in a position to get shared.

EB-5 advocates have been thinking about the power of stories. The regional center lobby just conducted a PR blitz with a message to EB-5 investors: please call Senator Leahy and Senator Schumer and tell your story, to urge action on reauthorization. The word used to be: stand back and relax because we have this under control, the key Congressional representatives are on board, and we possess the political capital to get this done. The new messaging acknowledges that reauthorization is not in the bag, that Congressional support is not a given, and that we need all the political capital we can get, including from EB-5 investors who can talk about their important contributing work and/or investment projects in the U.S..  While the case for reauthorization has many planks, the case for urgent reauthorization comes specifically from the plight of past investors, whose pending immigration petitions may be reevaluated after December. The plight of past investors also provides the moral motive for reauthorization. Regional centers and investors equally need that plight to be highlighted, to help motivate urgent action on reauthorization legislation.

EB5IC representatives have particularly encouraged EB-5 investors to call or email Senator Leahy’s office, and tell a personal story about the impact of regional center program lapse. While Senator Leahy practically founded the regional center program and does not need to be educated about EB-5 or the need for reform legislation (as discussed in my previous post), investor stories may help stoke his sense of urgency about the current EB-5 situation, in midst of many competing priorities.  

Meanwhile, AIIA is working to gather and disseminate EB-5 investor stories for maximum impact in the media and in personal meetings with Congressional representatives. The media drive is supported by IIUSA and its PR firm FischTank, which can help to get stories placed. Additionally, AIIA is planning a trip to Washington DC next week, and has an urgent call for investors to join in meetings with Congressional reps. If you can assist either or both of these efforts, please reach out to them ASAP. I cannot promise the success of these campaigns, but the effort can only help. And the more participation, the more potential impact.

Quoted from https://goaiia.org/blog/f/eb-5-investors-share-your-story

FischTank would like to develop a media campaign that focuses on the investors’ personal stories, highlighting what you and your families have sacrificed, where you are in your immigration process, current obstacles you are facing, and what you have contributed to your local community.  Once FischTank has had a chance to connect with those of you who are willing to share your story, it would then like to package it together to focus on the importance of the program, the impact of the lapse on investors and the communities that have benefited from the program and pitch it to relevant local and national media. If you are interested, consent to your identity and story being made public, and are prepared to speak with members of the press about your story and how this program lapse has affected you, please reach out to us right away at info@goaiia.org

Quoted from an email sent by info@goaiia.org on November 28, 2021

Dear EB-5 Stakeholder,

You may remember we had previously sent an email asking for personal stories of how the EB-5 lapse has affected you. We received a few responses, although honestly, we would have liked to receive more.

As a result of that request, we received a response from Dr. Chandra Ojha, an interventional cardiologist, who lives in El Paso, Texas. Despite being a highly trained doctor, he was not able to extend his full service to the society during the raging pandemic last year as a result of the delay in processing his EB-5 visa. His story was published in a local newspaper. You can read it here: Opinion: I’m an El Paso doctor. The immigration system has put my future in jeopardy – El Paso Matters

Within hours of the publication of his story, the office of a sitting Senator reached out and asked to speak with him.

This is how grassroots campaigning works! It moves things one little step at a time. If this is the power of just one genuine story, published by a constituent living in America, imagine hundreds of such voices being heard all across America and the power they would have to move things in our favor.

We need more people to speak up and advocate for themselves. We need more voices to be heard. We need you to step forward to help our community that is hurting because of the Regional Center program lapse.

There is something we urgently need your help with now. We are looking for EB-5 investors (or their dependents) to visit lawmakers with us in Washington, D.C. on December 9 and 10.

We hope that issuers and immigration attorneys alike can also help us with this effort. We are lining up a series of meetings with members of Congress and are seeking investors that have invested in a project in these following areas:

–        Texas (especially Houston)
–        Iowa
–        South Dakota
–        South Carolina
–        Illinois
–        Vermont
–        California (specifically Silicon Valley)
–        Arizona (Phoenix)
–        Upstate NY (Syracuse)
–        Ohio (North of Cleveland)
–        Georgia (South of Atlanta)

As a reminder, locations of investment is more important than residence and we are seeking investors whose projects are located in the areas mentioned above. Attorneys, we request you to forward this email to your clients and we appreciate getting your support in working together to achieve our common goal of helping EB-5 Regional Center investors continue their immigration process.

Read more at https://mailchi.mp/goaiia/dc-trip