RIA Implementation Update (website, forms, litigation, processing)

Today marks five months since the EB-5 Reform and Integrity Act (RIA) was enacted on March 15, 2022, and three months since the regional center program gained new authorization. Where are we now?

Amidst the flux on the USCIS website, litigation disputes, questionable new forms, and guidance that’s here today and may be gone tomorrow, this reliable foundation remains: RIA is law. Every regional center application and new investor petition filed today will certainly be approved or denied with reference to the law as updated by RIA. Every interpretation/application question that’s open today will eventually have to be resolved with reference to the law as updated by RIA.

The word “back” has become extremely popular, but the regional center program is not “back” in the sense of “back to the way it was before.” Regional centers are moving forward and finding their feet on a new footing: a law with new requirements and restrictions.  Struggling to avoid RIA compliance can only lead to failure, for industry and investors. For better or worse, RIA is the law.

Can new regional center investors file petitions? The day is coming, but it’s been a long wait. The new law says that “a regional center shall file an application with the Secretary of Homeland Security for each particular investment offering through an associated new commercial enterprise before any alien files a petition for classification under this paragraph by reason of investment in that offering.” IPO Chief Alissa Emmel declared on July 15 that “We are currently accepting immigrant petitions based on previously approved exemplars from regional centers. We are also receiving Form I-956F applications from previously designated regional centers.” So far I have heard of just two I-956F receipt notices, though many I-956F applications have been filed over the past couple months and should be acknowledged shortly. For example, USCIS finally issued a receipt notice on August 11 for an I-956F that it received from CMB on July 1. Cautious prospective regional center investors are waiting on I-956F receipt notices so that they can file I-526E according to instructions. (Personally I would not file I-526 relying on an I-924 exemplar approval without I-956F, since I-924 had half the content required for an exemplar under the new law plus different approval standards, and any material change cancels exemplar deference according to the new law.)  IPO should at least issue I-956F receipt notices expeditiously, and should also approve or deny I-956F as soon as possible. The exemplar process will only be effective if IPO can process NCE approval requests quickly enough to provide a reliable basis for approvable investor petitions. I wish that IPO will publish a list of approved and denied NCEs, to help regulate the market and stop denied NCEs from still soliciting EB-5 investment and sponsoring I-526E that can never be approved.

The litigation Behring Regional Center LLC v. Mayorkas et al. is still underway. The Preliminary Injunction on June 24 preliminary enjoined DHS from treating pre-RIA regional centers as deauthorized (finding ambiguity in RIA about RC designation). The parties are still discussing how DHS should handle pre-existing regional centers and their existing and new investors under the new rules. The plaintiff regional centers are trying to preserve as much of the pre-RIA status quo as possible, while DHS is fighting for time and leeway to ensure RIA compliance. (For a sense of the back and forth see the IIUSA Notice of Motion for Summary Judgment filed July 21 and the DHS Cross Motion for Summary Judgment filed August 18.) The most recent docket item filed August 12 by DHS discloses that “the parties are substantially engaged in settlement discussions, and an administrative resolution that may render further litigation of this case unnecessary.”

Prodded by litigation, USCIS has made limited adjustments to the EB-5 pages on the USCIS website.

  • EB-5 Home is updated as of 8/2/2022 to remove references to a repealed RC program and to add one “Alert” that USCIS will no longer accept combined fee payments for I-526/I-526E concurrently filed with status adjustment forms.
  • About the EB-5 Visa Classification was updated on 7/28/2022 with new sections reflecting the new law on Job Creation Requirements, Capital Investment Requirements, and Immigrant Visa Set-asides.
  • EB-5 Investors – This page is marked as last reviewed/updated on 8/2/2022, but the information provided on this page is outdated and inaccurate to the new law except for the “alert” in the header.
  • EB-5 Filing Tips – This page is marked as last reviewed/updated on 6/23/2022, but only one form title was changed. The page continues to give info that was accurate in December 2020 but now outdated/inaccurate.
  • EB-5 Regional Center Compliance Reviews – this page was last updated in 2020 and the info provided is now outdated/inaccurate
  • Approved EB-5 Immigrant Investor Regional Centers – this page still shows the regional center list as of October 24, 2021.
  • EB-5 Resources – This page links to the EB-5 Questions and Answers (updated April 2022) document most recently revised as of 7/11/2022. The latest Q&A deletes the previously-provided answers about regional center authorization repeal and investor petition grandfathering. The Q&A is currently silent on how USCIS treats pre-RIA regional center and their investors.
  • EB-5 Support – This page has been updated as of 7/27/2022 to link to new EB-5 forms (and now interestingly links to no regional center annual statement form – not I-924A and not I-956G – though I-956G remains available on the USCIS website.)
  • USCIS Policy Manual Volume G Part G Investors has not been updated at all as of August 15 except with an Alert noting that RIA was enacted and “USCIS is reviewing the new legislation and will provide additional guidance, including an eventual revision of Policy Manual content.”

USCIS has published six new forms that will need to be revised eventually in response to litigation and to correct errors and omissions: Form I-956 Application for Regional Center Designation, Form I-956H Bona Fides of Persons Involved with Regional Center Program, Form I-956F Application for Approval of an Investment in a New Commercial Enterprise, Form I-956G Regional Center Annual Statement, Form I-526, Immigrant Petition by Standalone Investor, and Form I-526E Immigrant Petition by Regional Center Investor. These forms can be filed despite their faults; lawyers and advisors just have to go the extra mile to think through what the law requires and what USCIS can be expected to request or should accept beyond what’s in the forms.  I particularly look forward to USCIS revising I-956G Annual Statement (which is predicated on the now discredited interpretation that RIA canceled pre-RIA regional center designations), and the new I-526E (which conflates ownership with decision rights over EB-5 investment in the definition of “persons involved”).

We’re used to living with inadequate instructions, as USCIS has a history of disconnect between form content and adjudication standards. For example among AAO I-526 denial decisions in 2021, a third cite lack of documentation for currency exchanger source of funds – a type of evidence that Form I-526 never has and still does not request. I-526 routinely get denied for not providing such evidence, because RFEs and decisions can point to justification in the law although USCIS doesn’t publicly request the evidence in their forms, instructions, filing tips, or policy manual. Or consider the issue of source of funds for enterprise owners not seeking immigration benefits. Form I-526 does not ask each petitioner to provide and depend on lawful source of funds documentation for every other investor in the NCE. But USCIS still denies I-526 for lack of such documentation. EB-5 practitioners have had to get used to looking past form instructions to figure out what EB-5 submissions need to succeed with USCIS. This challenge increases with room for interpretation in new EB-5 law. (And the new law sadly increases the stakes and risks of ambiguity, because RIA removed the possibility of judicial review for unreasonable USCIS interpretations.)

EB-5 processing volumes have yet to recover from the regional center program shutdown or the new law (not to mention the 2019 Reset Training at IPO), but I keep watching and hoping. I will shortly publish a separate post and new pages with the updates I’ve been collecting on I-526 and I-829 processing, adjustment of status, consular processing, the backlog and visa availability, and processing conditions generally. At least broader processing problems and the dire consequences have started to get better recognition from the government and media, which is a good step toward change.

People are welcome to use this blog comment section as a forum for sharing experience and asking questions, but note that larger and better arranged EB-5 groups are also available, including https://goaiia.org/, https://t.me/EB5VisaGroup, https://t.me/+NWEYhY6y81AzYzIx,  and https://t.me/+N0K7TuzrPYQwMDJl Email suzanne@lucidtext.com if you know of other groups that I should mention, or if you need help joining a group.

About Suzanne (www.lucidtext.com)
Suzanne Lazicki is a business plan writer, EB-5 expert, and founder of Lucid Professional Writing. Contact me at suzanne@lucidtext.com (626) 660-4030.

33 Responses to RIA Implementation Update (website, forms, litigation, processing)

  1. David Hirson says:

    Dear Suzanne. You are amazing! Thank you for all your insightful observations and conclusions. Your articles are incredibly helpful. Thank you. Thank you. David Hirson

    PS I am already a subscriber so the boxes checked below may be duplicative.

  2. Johnny says:

    Thanks a lot for the update! We are very disappointed with USCIS. It looks like they are taking ages to approve our I-526. Our priority date is late Dec 2018, and there’s no backlog for our country. Still we heard nothing from them, not even a RFE. Cheers

    • Y526 says:

      Oh my gosh, this worries me. I am a direct EB5 investor with a PD of October 13, 2021. My case status still reads as “case was received”, and while I know there are many others in the same boat with a much earlier PD, I was hoping I would at least get an RFE or some sort of update by now. I am not from a backlogged country, either.

    • Raj says:

      Our priority date is July 2018 (Regional center). I still have not heard anything from USICS. The status shows the case was received. No backlog for our country.

      • JBL says:

        My priority date is December 2018 (regional center) and haven’t heard anything from USCIS. No backlog from my country either (Mexico). I have filed i-485/i-765/i-131 already.

        • Ar says:

          when did you file i-485/i-765/i-131 , will the travel advanced parole get approved before i-526

          • JBL says:

            Ar, not sure if you are asking me but USCIS received my applications August 3. There is a chance I get advanced parole before I-526 approval, but honestly who knows.

  3. Hung, Tran says:

    Many thanks Suzanne! I am also a direct EB5 investor and got Expedite Request approval granted from USCIS on Mar 2022. With this, I assume they will expedite processing my case in couple of months, yet, a silence until now. What should I do then?

    • Rachit Kumar says:

      I have an expedite request approved from May 2021 and still no action. Repeated emails to USCIS have gone unanswered. Don’t know what to do next.

      • Hung, Tran says:

        Thanks for sharing! Hope everyone will get progress soon.

      • N says:

        Could you share your priority date and how you asked for an expedited processing?

        • Rachit Kumar says:

          Priority date August 2019. I asked for expedited processing as I’m a physician and my work in COVID is in the national interest of United States

          • CO says:

            @Rachit Kumar

            Not to discourage but just to give you and other people perspective, so that it doesn’t affect you guys the way it has done to me.

            I received Physician Expedite in mid September 2020, 526 approval late October 2020, 485 filed early December 2020. Despite some help from Senator’s office, could not escape the lapse. The lapse period was horrible and horrendous to say the least. Affected me in the ways, I never though that anxiety, stress or uncertainty would affect me.

            Trying since April 2022, to get 485 adjudicated. No success. Seems one can conquer “death” but impossible to even get the legitimate rights here despite four plus years in EB5 and almost two years since AOS application. Physician expedite has not really helped many people, except two people (out of close to 40/50 Physicians).

            I am not sure, if things are going to improve in the future but I fear the psychosomatic effects of anxiety, worry, uncertainty and depression affecting people, the way it did to me.

          • Anubha Mutneja says:

            Rachit, is that you? When did you apply?

          • Rachit Kumar says:

            Hey yeah it’s me . Let’s connect offline and chat about it more

    • M Shahul says:

      Hi Hung, did you expedite your i526. On what grounds did you expedite?

      • Hung, Tran says:

        Yes I did. The project is in the national interest of United States, therefore all investors can apply for expedited approval. My PD is early Mar 2022 and I got Expedited approval on late Mar 2022.

  4. Rachit Kumar says:

    @ CO – I have asked my Senator’s office to inquire with the USCIS about my expedite request. In your experience, are congressional inquiries useful ?

    • CO says:

      Mine (in Texas) have not been helpful for 485 adjudication. May be they can’t. Senator Cruz’s office did help me in 2021 with EAD and AP. When EAD and AP was submitter for renewal, they only renewed EAD. Waiting for AP renewal for 10 months.

  5. AMadou Ndiayel says:

    I like it

  6. EC says:

    In case it isn’t obvious to everyone by now, especially readers of this blog, USCIS is broken with no serious interest in fixing what’s broken. The only way to get any kind of competent action on your case or even the most basic level of communication is to file a mandamus. If things work out for you without a lawsuit, count yourself lucky.

  7. HB says:

    Hey Suzanne, the second telegram link has expired. Would you be able to get an updated link if you are a member of the group.

  8. UN says:

    Hey Suzanne,

    Your posts kept our hopes alive during the tough times. It took 2 years for the I-526 approval (PD- Dec 2018, approved June last week 2021 just before the lapse) We filed I-485/ 765/ 131/ 693 end April 2022 and I-485 was approved August first week 2022. Just to give some confidence to all investors. Regional Center Applicant/ India

    • CO says:

      Congratulations @UN. Must be such a big relief. Your timeline for AOS is a miracle. However, very few miracles happen.

      Mine 526 PD is July 2018. COVID Physician Expedite in mid September 2020, 526 approval late October 2020, 485 filed early December 2020, could not escape the lapse. The lapse period was horrible and horrendous to say the least.

      Trying since April 2022, to get 485 adjudicated. No success. Medical RFE in late May 22, even when medical valid. Been more than two months since receipt of medical RFE and transfer to California Service center. All desperate please for help have failed.

      • UN says:

        I would like to believe RFE is a good sign and it will move to approved soon

        • CO says:

          Nobody knows. It’s a lot about luck and fate, I think. What worked most in your favor was the USCIS adjudicating 2022 applications, while putting 2020 and 2021 AOS in even longer waiting. It’s happening across all the categories, especially EB2. The hypothesis is that by adjudicating recent applications, the mean/median processing time will be markedly reduced and although it’s data manipulation but makes USCIS look good on paper for reducing the processing times despite staffing shortages.

  9. CO says:

    @UN

    Around 526 priority date or 485 receipt date ?

  10. David Hirson says:

    Hi Suzanne

    I trust all is well with you. I will be interested in your comments on the pending settlement of the N Cal Behring and others’ lawsuits against USCIS.

    It strikes me that the multitude of forms required to register, amend or obtain approval of a business plan duplicate each other In so many respects, entail unnecessary work and of course their are the coveted filing fees.

    When filing the form I – 956F all the information contained addresses that which is needed in the form I-956 to form or amend regional center. It also, of course, includes the exemplar portion of the form.

    Can you see the basis for a combination of these forms to reduce the duplicative filings and the multiple filing fees?

    I do not wish to take up any of your valuable time but will be willing to discuss this further with you should you so choose.

    Warmest regards,

    David

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