EB-5 Forum to be Held at CSC on 3/16/10

According to the AILA website, the USCIS California Service Center (CSC) has scheduled an EB-5 forum on March 16, 2010 from 1:00pm to 3:00pm. The CSC will be providing brief EB-5 updates and open the floor for an informal Q&A with a panel of EB-5 managers, supervisors, and service center counsel. The event is open to the public.

StartUp Visa Act of 2010

Today Senators John Kerry and Richard Lugar introduced the “StartUp Visa Act of 2010,” which proposes a new EB-6 category visa for immigrant entrepreneurs.

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New Book on EB-5

As of January 26, 2010, one can purchase or kindle Green Card via the Red Carpet: A Comprehensive Guide to Immigrating to the U.S. by Investing in an EB-5 Regional Center by Stephen Parnell and Andrew Bartlett. The book works hard for its “comprehensive” title, judging from the table of contents viewable on amazon, with sections covering reasons to immigrate to the US, all immigrant and non-immigrant visa categories, the history and types of EB-5, issues to consider in evaluating regional centers, the EB-5 immigration process, and relocation advice. The authors also have a website www.WhichEB5.com, which offers free consulting to potential EB-5 investors and fee-based promotion to Regional Centers. The website includes a lot of text on EB-5 topics and rather little useful information, but maybe because they want me to buy the book. It’s difficult to provide current and correct information for a field as volatile as EB-5, and the website falters a bit in this area, claiming a “green card in six months” timeline for example and reporting the number of regional centers variously as about 30 and about 50 (in fact now over 80). If I were a lawyer or Regional Center I might still buy the book though for the final relocation section, which appears to offer useful practical advice for those time-consuming “how do I make it in the USA” questions from taxation to credit to education to health care that investors do ask.

USCIS breaks the law?

Wow, this is interesting. “What Happens When USCIS Breaks the Law?” asks the AILA Leadership Blog (by the American Immigration Law Association)  in a strongly-worded post alleging that USCIS took ignoring Federal Law to a new level with its 12-11-2009 Neufield memo on the EB-5 program, a memo that not only changes the law but “essentially makes the job creation program unworkable,” according to the post.  AILA is drafting a position paper specifying what’s wrong with the memo and is urging additional action to save the EB-5 and H-1B programs from USCIS and its “bizarre notion of what they think the law should be, not what it really is.” The comments on this post are also worth reading.

More Mainland China Investors

Ivener & Fullmer LLP has issued a press release on the EB-5 program that includes this interesting statistic: “According to Beijing Entry and Exit Service Association, applicants for the [EB-5] program doubled at the end of last year compared to the previous year, with the numbers jumping from about 500 in 2008 to 1000 in 2009.”

EB-5 Program in the News

The Washington Post and Forbes (followed by ABC Money) came out this weekend with articles on the EB-5 program: Immigrants invest in U.S. businesses in exchange for visas and A Precious Capital Source For Small Biz. Though Forbes refers to EB-5 as “a quick-and-dirty-U.S.visa” and notes complaints that “EB-5 runs about as efficiently as the DMV,” the articles are mainly positive and include favorable interviews with investors, regional centers, and elected officials. I was interested to see confirmation of the statistic that 70 percent of immigrants granted investor visas in fiscal 2009 were from China or South Korea.

EB-5 Q&A with USCIS

USCIS has posted Q&A from the December 14, 2009 EB-5 conference call on their website. The questions (posed by the AILA EB-5 committee and Invest in the USA) were excellent and the USCIS answers mostly predictable (we can’t answer that question so we’ll answer a different one; we’re not going to tell you because there’s a memo on that subject forthcoming at an unknown date; we have an inapplicable precedent to refer you to; we have no general guidelines only case by case reactions). At least USCIS had prepared answers this time and some valuable information was shared.  Of particular interest to me:

  • There were “less than 50” regional center applications pending at USCIS as of 12/14/09.
  • USCIS highlighted the importance of business plans. The movement of funds from one job-creating business to another is acceptable in principle with no need to amend the I-526 petition provided that the approved I-526 business plan allows for such movement. Job creation based on capital infusion can be demonstrated at the I-829 stage simply by referring to economic data in support of the I-526 petition provided that “the infusion of capital occurs according to the approved business plan and economic analysis, and the capital investment scheme comes to fruition in the manner outlined in the business plan.”
  • USCIS made a strong statement about TEA designation, saying that they consider unacceptable “state-sanctioned attempts to ‘gerrymander’ a finding of high unemployment that is not in accordance with the statutory requirement, through the cobbling together of various portions of political subdivisions so that an investment in a commercial enterprise in a location that is not a high unemployment area would ultimately qualify as one.” While recognizing that states have the authority to designate TEA, USCIS emphasized that this designation must be in accordance with the statutory requirements for TEA: that the area is rural or has an unemployment rate 150% of the national average. Historically USCIS has accepted some creative TEA designations by states, but it seems that this will no longer be the case.
  • USCIS emphasized that Regional Centers can only get credit for indirect jobs/impacts created within the geographic boundaries of the Regional Center.
  • A project that has received traditional EB-5 investment may apply for designation as a regional center, so long as the economic analysis doesn’t “double-count” the jobs already allocated to the traditional EB-5 investors.
  • USCIS confirmed that an investor can be counted as investing in a “new” commercial enterprise so long as that enterprise was established after 11/29/1990, and that such an investment will qualify without the need to show that the investor was involved in establishing, expanding, or reorganizing the business.
  • The Q&A repeatedly cites this newly released document: Adjudication Field Manual Update AD09-38. Click here for the full text Adjudicator’s Field Manual.

Why some get denied

A useful feature of the redesigned USCIS website is a section giving easy access to EB-5 related decisions from the Administrative Appeals Office. Decisions from 2005 to September 28, 2009 have been posted, providing valuable hints for how not to structure and present Regional Center applications and I-526/I-829 Petitions.