7/26 EB-5 Stakeholder Engagement

Today’s EB-5 stakeholder engagement was very substantive, with the USCIS panelists providing detailed answers to many questions submitted in advance of the call. I encourage you to review my recording if you weren’t able to join the teleconference. Robert Silvers, Senior Counselor to the Director, took an active role in this call and seemed well-prepared and genuinely engaged, upholding the standard set by Director Mayorkas.

Rob Silvers discussed process enhancements for EB-5, including the new EB-5 program office, new hires, case specialization, and the forthcoming review board for I-924 applications recommended for denial. He also suggested that a new draft of the EB-5 policy memorandum will be published in the next four weeks, and that movement on the “tenant occupancy” cases can be expected “very soon.”

Stakeholder questions addressed in the call included questions related to the requirements for sustaining investment, evidence requirements for I-924 petitions and amendments, metrics for determining acceptable geographic boundaries for a Regional Center, RFE practices, acceptable evidence of non-EB-5 capital commitments, acceptability of investor returns and distributions during the CPR period, acceptability of investors receiving real estate as a return on investment, counting jobs in business acquisition scenarios, and the issue of deference to prior approvals. For more detail see  the detailed summary of the call posted by the EB-5 Center blog, or review my recording of the call.

5/1 Engagement Mega Executive Summary! (Tenant Occupancy! TEAs! Bridge Financing! RC Sunset! More!)

Many people left the California Service Center disappointed after the Quarterly EB-5 Stakeholder Engagement on 5/1/2012, but now USCIS has made up for telling us little in person by publishing an amazing 17-page Executive Summary that covers what they didn’t say at the meeting. I’ll probably be commenting on this summary for weeks. Particularly note the Q&A on tenant occupancy, which is less ambiguous and more restrictive than the guidance from Chief Economist John Rodgers. I’m copying a few of the hottest new releases below, and I encourage you to download and review the full document.

Selected Q&A from USCIS’s Executive Summary of the 5/1/2012 EB-5 Quarterly Stakeholder Engagement

NAICS Codes
Q: In a regional center application, kindly confirm that two digits of North American Industry Classification System (NAICS) codes are considered sufficient with the industry cluster specified and economic report elaborating the same. The rationale behind this is because in a retail and office setting, three digit code tenants are not ascertained at the time of filing the I-924.
A: This is not acceptable. Even within clusters and projects that incur similarities, USCIS requires four digit NAICS codes at a minimum.

Permissible Expenditures
Contingencies
Q: Any reasonable budget will include line items for “contingencies” and “operating capital” which are required in order to sustain a business successfully during the development process. Some business plans have been approved with such lines (as they should be) while others have been rejected specifically citing these budget lines as “not being job creating activities”. Please confirm that such expenditures are permissible – no business plan is believable without such budget lines.
A: Whether a particular line item in a budget presented in support of an EB-5 petition is appropriate cannot be confirmed in general, but must be analyzed in the context of the instant case. However, USCIS does agree that a credible business plan should contain a reasonable budget that outlines the prospective expenses of the business.

Real Estate Acquisition
Q: One of the most effective ways to attract investors is for the business into which they are going to invest to buy and own the real estate in which they will operate the business, rather than merely lease it. This makes the investor feel that the business is more likely to succeed, or, if it fails, the real estate could perhaps be used to establish a second business. Therefore, where part of the investment expenditure is spent on real estate in which the business is to be operated, is it correct that such expenditure is a job creating expenditure for which appropriate job creation credits can be obtained. For example, if an investor invests $1million to acquire a building for $500,000 and then spend another $500,000 to renovate and equip as well as fund operating capital for a restaurant, would the entire $1million be considered an appropriate EB5 investment, assuming it otherwise qualifies.
A: This is a simple transfer of real estate with renovations occurring subsequent to the purchase. The renovation and outfitting of the facility will create temporary jobs, and it is possible that a trivial number of jobs could be created by the fees charged for the real estate transfer. Summarily, yes—the $1 million could be considered an appropriate EB-5 investment—assuming that the other requirements of the EB-5 regulations are satisfied.

Bridge Financing
Q: Under what circumstances will USCIS approve bridge financing? Will the memo address this? This does not appear to be covered with adequate specificity in the last iteration of the policy memo. Stakeholders are not aware of any written guidance on bridge financing other than am AAO decision on the Victorville case, and this is an extreme example with specific facts. Of the two memos in 2009 (June and December) on construction, the December 2009 memo superseded the June memo, but stakeholders continue to receive RFEs referencing the June memo.
A: Pursuant to 8 C.F.R § 204.6(j)(4)(i), the new commercial enterprise, not the EB-5 investors, must create the requisite employment. As such, it is acceptable for the developer or the principal of the new commercial enterprise, either directly or through a separate job-creating entity, to utilize interim, temporary or bridge financing – in the form of either debt or equity – prior to receipt of EB-5 capital. If the project commences based on the bridge financing prior to the receipt of the EB-5 capital and subsequently replaces it with EB-5 capital, the new commercial enterprise still gets credit for the job creation under the regulations.
This policy will be issued in the forthcoming EB-5 policy memo in Section C, the Creation of Jobs section:
“It is important to recognize that while the immigrant’s investment must result in the creation of jobs for qualifying employees, it is the new commercial enterprise that creates the jobs. This distinction is best illustrated by an example:
Ten immigrant investors seek to establish a hotel as their new commercial enterprise. The establishment of the new hotel requires capital to pay financing costs, purchasing the land, developing the plans, obtaining the licenses, building the structure, taking care of the grounds, staffing the hotel, and the many other types of expenses involved in the development and operation of a new hotel. The immigrant’s investments can go to pay part or all of any of these expenses.”

Verifying RC Job Creation
Q: Can expenditure models based on RIMs II Final Demand Multipliers, if they project adequate number of jobs to satisfy the 10 full time job requirement per investor, satisfy the job creation requirement and proof of such expenditure submitted with the I-829 in accordance with the business plan submitted with the I-526?
A: This is an acceptable methodology if the structure of the business entities precludes the acquisition of tax documents or other evidence of employment for the components projected to be involved in direct job creation. USCIS would require a detailed explanation as to why the use of a model projection as opposed to evidentiary proof is necessary.

TENANT OCCUPANCY!
Q: In a case where the EB-5 business is a real estate development, which leases space to tenant businesses who then hire employees, do the following factors increase the likelihood that those tenant’s jobs can count toward satisfying the job requirements of the development’s EB-5 investors:
a. The tenant business is a new business which did not merely move from another location
b. The tenant business received cash from the development for tenant improvements
c. The tenant business received a loan from the development
d. The tenant received free rent or rent reductions
e. The tenant received an equity investment from the development
A:
a. The tenant business is a new business which did not merely move from another location
This is not acceptable. None of the EB5 capital would be flowing to the jobs created by the tenant.
b. The tenant business received cash from the development for tenant improvements
This is not acceptable. The tenants would still be responsible for creating the jobs. The EB-5 capital would simply be improving/outfitting/customizing the structure already owned by EB-5 capital.
c. The tenant business received a loan from the development
This is acceptable with caveats. This effectively represents the co-mingling of capital. Similar to the quid pro quo expenditure agreement referenced above, however, this will render the agency vulnerable to fraud because the tenants could form an agreement beyond the adjudicative scope of USCIS to funnel the funds back to the developer. In addition, USCIS would need to define the constraints of the loan amounts and duration. Otherwise, the developer could loan $0.01 to a tenant to take credit for any jobs created. Finally, the tenant business must verify that the jobs are new jobs not transferred from elsewhere.
d. The tenant received free rent or rent reductions
This is acceptable with caveats. Similar to (b) above, this effectively represents the co-mingling of capital as the free rent/rent reductions acts as a loan. The same caveats apply here as in (b) above. In addition, this will cause a significant decrease in rental income for the EB-5 NCE, which should be an investment at-risk, not at-loss. USCIS would still need to define the constraints of the rental discount required, which effectively serves as a loan. It is highly unlikely, however, that the free rent or rent reduction over a 2.5-year period would sum to a total amount that could be considered a substantial investment in the tenant business.
e. The tenant received an equity investment from the development
This is acceptable with caveats. Again, this effectively represents the co-mingling of capital as in (b) above. The same caveats apply here.

TEA Designations and Census Tracts
Q: Will a single or multiple contiguous census tracts be considered as a geographic subarea?
A: USCIS encourages that standard Bureau of Labor Statistics (BLS) estimation methodology be used. In the event that subareas for which Local Area Unemployment Statistic estimates are not regularly produced, such as census tracts, the TEA applicant should be aware of the following: (1) the census-share technique be used ONLY where inputs for the preferred BLS methodology are not available and (2) only household-only inputs be used, in order to eliminate the impact of the Census 2000 Group Quarters processing error. More information regarding this answer can be found at the Bureau of Labor Statistics webpage at: http://www.bls.gov/bls/empsitquickguide.htm

Q: Can a qualifying census tract with unemployment 150% of the national rate be certified as a TEA?
A: Yes, but designation will depend on the quality and timeliness of the data used to support the 150% of the national average rate of unemployment claim. Acceptable data sources for purposes of calculating unemployment include Local Area Unemployment Statistics produced by a government agency, U.S. Census Bureau data, and data from the American Community Survey.

Q: Has there been any progress on further defining an acceptable vs. gerrymandered TEA? Will USCIS be providing additional guidance?
A: This issue is being examined in the context of the draft memorandum, which will be posted for comment in the near future.

Profit Requirements
Q: At the end of the two year period, to remove the restriction, does the business created have to make profits? Or can the business lose money as long as the ten job creation requirement is satisfied?
A: There is no “profit” requirement in the statue or regulations. As long as the investment has been made and is at risk of loss and the required jobs have been created there is no additional profitability requirement.

USCIS Staffing
Q: What will the USCIS EB5 unit organizational chart look like once hiring is complete?
A: We can only provide a generalized org chart, without specific staffing numbers.

Non-Profit Organizations
Q: How can non-profits benefit from this program? Can they receive a direct investment from an EB-5 investor or do they need to work through a regional center?
A: An EB-5 investment must be in a for-profit entity, so a direct investment in a non-profit probably does not meet program requirements. EB-5 promoters may be able to advise on structuring specific investment opportunities, but the premise of the EB-5 program is investment in for profit activities. Job creation is the same, but premise of program is for for-profit commercial entities.

EB-5 Sunset
Q: What is the status of the EB-5 “sunset” scheduled for September 30, 2012, and how might this affect current and future applications and projects?
A:
The EB-5 Immigrant Investor Pilot Program is scheduled to end or “sunset” at the end of the current fiscal year, on September 30, 2012.
Without Congressional reauthorization, the Immigrant Investor Pilot Program will end on September 30, 2012. Congress may choose to end or extend the program.
If Congress does not reauthorize the Immigrant Investor Pilot Program, all existing regional center designations will expire automatically.
Following the sunset of the Immigrant Investor Pilot Program, USCIS will no longer possess authority to approve a regional center designation.
USCIS will continue to monitor Congressional actions pertaining to the EB-5 Immigrant Investor program, and will keep stakeholders informed as new information becomes available.

USCIS Chief Economist Speaks

I will calm down, arrange my thoughts, listen to the call five or six more times, and then attempt to say something useful about today’s Engagement with Director Mayorkas and USCIS Economists. I may even be kind enough to transcribe portions of the meeting. In the meantime, you may click here to download my recording of the call. Topics include counting jobs in real estate development projects, hotel-related job creation, and what USCIS currently does and does not want to see in business plans and economic analyses for EB-5 investment projects.

Engagement with USCIS Economists

This just in from the USCIS Office of Public Engagement:

Dear Stakeholder,

U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas invites any interested individuals to participate in a stakeholder engagement with USCIS economists on Friday, June 22, 2012 from 3:00 pm to 4:30 pm (Eastern). During the session, USCIS economists will address the agency’s review of economic methodologies used in EB-5 Immigrant Investor cases. This discussion will complement the next regularly scheduled quarterly EB-5 engagement, which will take place on July 26, 2012, by focusing on a discrete topic of inquiry.

To Submit Agenda Items
If you would like to submit agenda items and questions you must RSVP via email and attach a Word document with suggested items. All submissions should be received by the Public Engagement Division by COB Monday, June 11, 2012.

To Participate in the Session
You may attend this engagement either in person** or by teleconference. To RSVP, please email the Public Engagement Division no later than Wednesday, June 20 at Public.Engagement@uscis.dhs.gov.

If you plan to attend in person, please reference “Economist – In Person”

If you plan to attend by phone, please reference “Economist – Phone”

Following registration, we will confirm via email your in-person attendance or provide the call in details. If you are attending in person, please be sure to bring photo identification and arrive at least 15 minutes early to allow extra time to complete the security process.

**Please note that, due to seating capacity, we must limit in-person participation to the first 75 individuals who respond. Please see the attached invitation for more information.

Kind Regards,

Public Engagement Division
U.S. Citizenship and Immigration Services
http://www.uscis.gov

5/1 Stakeholder Non-Engagement

Here’s what came out of today’s hotly-anticipated in-person EB-5 stakeholder meeting at the California Service Center:

• USCIS did not allow questions about and did not comment on the “tenant occupancy” issues.
• USCIS did not provide a PowerPoint presentation, and did not address the stakeholder questions solicited and provided in advance of the meeting. (This may have been an error of organization, as it was announced at the beginning of the call that the panelists had prepared to answer the questions submitted in advance.)
• Although quite a few senior staff were present at the meeting, they said little. Sasha Haskell of Service Center Operations did nearly all the talking.
• USCIS acknowledged comments on but expressed no specific plan or goals to improve processing times.
• USCIS acknowledged comments on but expressed no specific plan or goals to improve communication through the public engagement mailbox or through the I-924 applicant email lines.
• USCIS acknowledged comments on but expressed no specific plan or goals to communicate expectations and standards in a more open manner.
• USCIS provided the usual EB-5 statistics, and promised that stats will be published consistently in the future.
• USCIS suggested that a new draft of the EB-5 policy memo will be emerging “in a few weeks,” and that the service is not currently deferring to the draft memo or implementing the “material change” guidance included.
• USCIS confirmed that, as indicated in yesterday’s general email from the Office of Public Engagement, applicants who were issued a “tenant occupancy” RFE will be contacted with a notice that their deadline for response will be extended. However, there were no promises of forthcoming guidance related to the RFE.

I have uploaded my recording of the call, but I don’t recommend it, except for the eloquent appeals expressed by members of the EB-5 community. I approached this meeting full of sympathy for the USCIS panelists and their difficult task of engaging upset stakeholders on the complex and valid concerns that have recently arisen. But  as it turned out, I had no occasion for sympathy. Engagement hardly occurred.   After the moderator had ended the meeting, the mic caught a private comment that I interpret to be Sasha Haskell saying aside: “I think we’re doing fine, I don’t care what they say.” I’m almost certainly mishearing, but if Ms. Haskell did say that, it is consistent with the dense, unaccommodating attitude that was apparent throughout the meeting, and that bodes ill for future improvement.

I am sad. The EB-5 Regional Center program has so much promise, and yet this meeting highlighted management problems and points of confusion while giving no indication that they are being seriously addressed or will go away any time soon.  I spent the weekend at the IIUSA conference talking to people with proposals for  projects involving real job creation and significant economic development, and today’s “engagement” doesn’t leave us any closer to knowing whether it’s safe for business people to use EB-5 to support those plans.

7/03/2012 Update: USCIS has published a very informative Executive Summary covering questions not addressed at the meeting.

New USCIS Policy Guidance!

The USCIS Office of Public Engagement has just emailed an invitation to a teleconference next week 11/9 (1 pm EST) to chat with Director Mayorkas about “new USCIS policy guidance on the EB-5 Immigrant Investor Program”. Could this be the comprehensive guidance memo promised in this summer’s stakeholder meetings?  I’m so excited!  I’ll post links to the invite and the new guidance as soon as they’re posted on the USCIS website.

11/9 Update: here is the Draft Policy Memo.

9/15 Stakeholder Meeting

In case you missed the 9/15/11 stakeholder meeting with USCIS, you can get a copy of the presentation here, and listen to audio that I recorded today by clicking on the media player at the base of this post.

The Q&A period included a number of interesting technical points. The panelists gave advice and made statements more generously then they usually do, but keep in mind that “it depends” is probably really the correct answer to most of the questions, even if the panel was too nice this time to fall back on that response. I’d caution everyone to keep context in mind and not latch on to sentences from a conference call as the final word on any issue. For example, I doubt you can file an I-829 showing that not all EB-5 investment in a new commercial enterprise has been actually put to use in any project, with the argument “remember that call when Kevin Cummins said…” Or count on “but that one time Sasha Haskell said…” when you file an amendment to industries by “just filling out the form”  and then get an RFE pointing out that you failed to provide sufficient detail to show in verifiable detail how capital investment offerings in the requested industry will create jobs.

The presentation includes one extremely useful section: a list of the common reasons for Requests For Evidence and denials on I-924 cases. You can find this on slides 14-17 of the presentation, and I’ve also reproduced the content on my page of advice for applicants.  The list really captures the few points I see repeated over and over on RFEs.  It’s not hard to avoid an RFE; read this list and get your application right the first time.

Also note the topic of appropriate geographic areas for Regional Centers. The current I-924 form doesn’t really ask for anything on geographic area beyond a map with borders marked, and nothing prevents applicants from doing what, in fact, they do: apply for the location of their proposed project(s) plus as many surrounding counties as they dare — either because they might ever do something in those areas or (usually) to look big and assist marketing efforts. And a review of recently-approved centers shows that applicants are increasingly ambitious, with more and more full state and even multi-state centers approved. Probably this doesn’t matter since RC areas aren’t exclusive, but it isn’t what Congress had in mind when it specified that “A Regional Center may be granted jurisdiction over a limited geographic area for the purpose of concentrating pooled investment in defined economic zones.” I haven’t heard the issue raised much before, but now USCIS may be planning to crack down in this area.  According to slide 35 of the presentation:
–A Regional Center must demonstrate in the Form I-924 that its activities will focus on the requested geographic region, and not simply on isolated and unrelated areas within the region
–It may be more appropriate for the Regional Center to initially request a geographic area that is in keeping with the economic impacts of the existing project, and then subsequently file an amendment request for an expanded geographic area as the details and location of future projects become known
I’m hoping that the forth-coming revised I-924 Form will offer more guidance on appropriate geographic areas and how exactly USCIS wants applicants to demonstrate the geographic focus of their activities.

This conference call also impressed me that the leadership at least is serious about receiving feedback through the EB-5 inquiry mailbox (for case-specific issues outside the new direct email communication) and the Office of Public Engagement email address (for policy issues).  It seems that problems reported (and documented) in emails to OPE have actually been reviewed even by Director Mayorkas and used in training adjudicators, and that problems (for example in Regional Center approval letters) have actually been dealt with following emails to the EB-5 inquiry email address. And of course there’s the new direct email communication for all pending I-924 cases.

Audio recording of the 9/15 stakeholder meeting:

Conversation with Director Mayorkas

Today’s Conversation with Director Mayorkas proved to be very interesting. I liked the forum — an open conversation with 25 attendees chosen on a first-come-first-serve basis. We heard some familiar voices and familiar soapboxing, but generally the meeting format allowed for genuine discussion and for extended follow-up and interaction on important issues. Director Mayorkas once again came out looking good — knowledgeable about the program, pro-active, serious, sympathetic, and sensible. No issues were resolved in the context of this discussion, but a few noteworthy items:

• The Director chose to make EB-5 the topic of his first “Conversation” because it is of high importance to the country and a high priority for USCIS.
• “Premium processing” for EB-5 is a goal that will take a lot of time to implement (involving creation of new forms, OMB clearance, and a Federal Registry posting). This process is being accelerated as much as possible, and in the meantime the Director is taking steps for more immediate improvement through seeking ways to expedite processing outside of premium processing. These steps include implementing direct communication with adjudicators, hiring new staff including an economist and business analysts, and gathering input from the community on current problems for use in training adjudicators.
• USCIS will provide a response to the AILA EB-5 Committee questions “as fast as possible,” but this will take time. The Director noted that there isn’t unanimity on these issues even among EB-5 stakeholders present.
• USCIS is finalizing a revised “overarching” policy memo that will address issues that have arisen over previous memos and incorporate feedback and questions from stakeholders at this and future meetings. Items addressed will include the issue of child protection for EB-5 investor dependents in case I-526 has to be refiled.
• USCIS is changing the formula for calculating the I-526 and I-829 processing times so that they better reflect actual average times (time to completion rather than just time to the adjudicator’s desk).

Most of the meeting time was given to participants and their opinions and suggestions. The group united in calling for increased consistency, and divided on whether USCIS should be more or less vigilant. Here are a few minutes of audio from what I consider a highlight of the call, including the most thrilling for-against more regulation exchange and the best organizational suggestion (from about 24 minutes in):

Conversation with Director Mayorkas and Processing Changes Update

Today I listened in on the first teleconference in the “Conversations with the Director” series focusing on Opportunities for Business Entrepreneurs within the U.S. Immigration System. Director Mayorkas participated the call, along with representatives from the Office of Policy and Strategy, Service Center Operations, and Office of Chief Counsel. The call included almost two hours of public Q&A, largely focusing on the L-1, E-2, and H1-b programs. It proved mainly a forum for the public to air concerns about adjudication problems, and for the leadership to listen sympathetically and say they’d look into it. A few points of interest for the EB-5 community:

Status of EB-5 Processing Changes. Director Mayorkas provided the following update:

• USCIS has finished reviewing 177 pages of comments on the proposed processing changes
• USCIS will publish a final reformed process “in the next few weeks”
• In September, USCIS will implement one of the proposed changes: direct communication with the adjudicative team.
• USCIS is moving forward “as quickly as possible” on implementing premium processing, but this will take time. USCIS is currently revising its proposal, and there will also need to be  significant operational steps including revising the forms and Federal Register changes before premium processing will be a reality.

Adjudicator Training. The leadership is undertaking adjudicator training in an attempt to address problems and inconsistencies, and several callers were encouraged to send their problem RFEs to the Office of Public Engagement (public.engagement@dhs.gov) for use in the training.

6/30 EB-5 Stakeholders Meeting

The printed materials from the 6/30 EB-5 Stakeholder’s Meeting were re-posted yesterday on the USCIS website with no revision. Click here for the EB-5 Presentation 063011 Slides and June 2011 Stakeholder Meeting Q&A. I’m also posting my recording of the second half of the meeting: