RIMS II Update, 5/31 Processing Times, New RCs (AZ, CA, FL, NV, TX)

July 8, 2014 Leave a comment

News from the Bureau of Economic Analysis regarding RIMS II:

BEA to Release Modified Regional Input-Output Model in 2015
The Bureau of Economic Analysis plans to release in 2015 a modified economic model to replace the original Regional Input-Output Modeling System (RIMS II). Cost savings will be realized because the modified model will be updated less frequently.
Much like RIMS II, the modified model will produce regional “multipliers” that can be used in economic impact studies to estimate the total economic impact of a project on a region.
However, the modified model will be updated with new input-output (I-O) data only for benchmark years. That is — years ending in 2 and 7. The modified model will become available to customers in 2015 and incorporate 2007 benchmark I-O data and 2012 regional economic data.
Last year, as a result of budget sequestration and reduced funding levels, BEA discontinued updates to RIMS II. Orders for RIMS II multipliers, however, have continued to be accepted because the cost of fulfilling these orders is covered by a nominal processing fee.
After investigating ways to continue to meet the analytical needs of our customers but do so at a lower cost to BEA, the bureau decided to make a modified economic model available. Until the modified model is available in 2015, customers may continue to buy RIMS II multipliers.

USCIS has updated Processing Time Information for the Immigrant Investor Program Office. Average processing times for EB-5 petitions as of 5/312014 were 13.2 months for I-526, 7.9 months for I-829, and 5.4 months for I-924 (the previous report showed 12.4, 8.7, and 4.4 months respectively). The USCIS Regional Center page explains that the estimated time for I-924 processing went way down last month because USCIS stopped including I-924A in the average (and due to increased efficiency).

Additions to the USCIS Regional Center List, 6/24/2014 to 7/8/2014

  • RCI Arizona Regional Center, LLC (Arizona)
  • Encore California RC, LLC (California): encoreeb5.com
  • Front Burner Restaurants Regional Center – Southern California (California)
  • SoCal Regional Center, LLC (California)
  • EB5 Affiliate Network State of Florida Regional Center, LLC (Florida): www.eb5affiliatenetwork.com
  • EB5 Affiliate Network State of Nevada Regional Center, LLC (Nevada): www.eb5affiliatenetwork.com
  • Renewable Texas Energy Regional Center (Texas): texaseb5rc.com

Filed under EB-5 Resources, New RC

New RCs, New AAO decisions, I-924 checklist, RC project list

June 24, 2014 Leave a comment

A few recent items of note in EB-5-world.

  • USCIS has added a document enticingly titled “EB-5 Adjudication Manual” to the EB-5 section of the Electronic Reading Room for documents released in response to FOIA requests. I assume that the document was supposed to include all the materials used in an April 2014 two-week training course for new Investor Program Office Staff, but unfortunately it only gives us only the outline of that course (PDF page 123-126) and a lot of materials for Day 3 (a fairly uninteresting general introduction day). One bit of pay dirt in this file is a checklist for items to look for in an I-924 filing (PDF page 102). IIUSA, which made the FOIA request, is going back to request the full set of IPO training materials, which should be very useful.
  • I regularly get emails from people who found my Regional Center list and ask me about getting a list of Regional Center projects. My standard response is that such a list does not exist and probably couldn’t exist because it would be so hard to create and administer and so unlikely to be comprehensive enough or disinterested enough to be useful. But the proliferation of Regional Centers, many of which have no activity, intensifies the demand for someone to sort down to a short list of active investment opportunities, and I note that USAdvisors is attempting to meet that demand with the launch of its website  https://eb5projects.com. So far the site reports listing 306 projects, including from 101 Regional Centers and some direct EB-5 offerings.
  • USCIS continues to upload 2014 AAO decisions on EB-5 petitions. In my opinion the most significant are still the May 27th cases 01 and 02, which set a high bar for the level of “meaningful business activity” and “meaningful concrete action” that must have been undertaken prior to I-526 filing in order for funds to be considered at risk. Grounds for upholding denial in this case include the fact that the initial I-526 didn’t include documentary evidence of commitments for 100% of the funds (in addition to the petitioner’s) needed to fill out the capital stack (evidence submitted in response to RFE was not accepted as supporting eligibility at the time of filing), and the fact that the petition showed that the NCE had entered into service contracts but not that performance under those contracts had already occurred. USCIS seems to be taking an unreasonably hard line. Long processing times and use of escrow can mean that an investor files I-526 at least year before the NCE can expect to use the EB-5 funds. If the investment actually — as the EB-5 program intends — has a substantial role in launching the NCE’s new job-creating activities, then I-526s will naturally be filed at an early stage in business development before all details are confirmed, and the NCE will inevitably have limited activities prior to I-526 filing.

Additions to the USCIS Regional Center List, 6/10/2014 to 6/24/2014

 

Filed under EB-5 Resources, New RC

More AAO decisions and New RCs (CA, CO, DC, DE, GA, IL, IN, MD, MN, NJ, PA, PR, TX, WI)

June 9, 2014 1 Comment

AAO Decisions

USCIS continues to upload 2014 AAO decisions on EB-5 petitions (with the May 27th decisions being newly added as of today). Joseph Whalen has summarized highlights.

Additions to the USCIS Regional Center List, 6/3/2014 to 6/9/2014

Filed under EB-5 Law & Policy, New RC

4/30 IPO Processing Times, New RCs (AL, AR, CA, DE, FL, GA, IL, LA, MD, MI, NJ, NV, NY, OR, PA, TN, TX, USVI, WA)

June 3, 2014 Leave a comment

Today USCIS updated processing times for the Investor Program Office (IPO) as of 4/30/2014. Compared to the average times posted last month, I-526 times are one month better (now at 12.4 months), I-829 are about the same (now at 8.7 months), and I-924s went from 10.6 months to 4.4 months on average!

As I-924 processing speeds up, new entries continue to flood onto the USCIS list of approved Regional Centers.  But who is everyone? I now have all Year 2013 Regional Center approval letters thanks to an IIUSA FOIA request (watch for my analysis of them coming soon in IIUSA’s Regional Center Business Journal) and I can hardly wait for USCIS to get around to publicly posting that FOIA file so that I can include all the letters in my Regional Center directory.  In the meantime, please email me if you’d like to provide corrected contact information or a copy of your approval letter.  My Regional Center list page gets about 400 hits a week from countries around the world, so giving me info means some free advertising for you plus supporting my mission of increasing transparency in EB-5.

Additions to the USCIS Regional Center List 5/28/2014 to 6/2/2014

Filed under New RC

FY2014 Q2 EB-5 Petition Data, Material Change AAO Decisions, New RCs (AR, CA, CT, DC, FL, ID, IL, IN, MD, MI, NJ, NV, NY, PA, TN, TX, VA, WV, UT, WI)

May 27, 2014 Leave a comment

The USCIS Immigration and Citizenship Data page has been updated again with data for I-526 and I-829 Petitions processed in the second quarter of Fiscal Year 2014 (January to March). Once again, here are my little charts illustrating how the numbers compare with previous quarters.
1526q2 I829q2
I-526 processing volumes show modest increase overall, but below last quarter’s spike and still nowhere near Mr. Colucci’s goal of having the number of processed petitions at least exceed the number of petitions received each week. I-829s, on the other hand, flew off the shelf in Q2 – maybe because they’re all the California EB-5 team has to work on as of February? We’ll see how the processing story continues to unfold in coming quarters.

USCIS continues to post 2014 Administrative Appeals Office decisions on EB-5 cases. APR232014_01B7203 and MAY122014_01B7203 are interesting as case studies of the much-misunderstood material change issue. People tend to panic that “material change” means that one can’t at any time deviate from any point of a business plan submitted to USCIS. The May 30, 2013 EB-5 Policy Memo and Matter of Izummi don’t say that, however. USCIS policy focuses on the period prior to I-526 approval and the problem of petitioners who, having filed an I-526 Petition that doesn’t demonstrate eligibility for EB-5 visa benefits, respond to Requests for Evidence with a new set of facts, materially changing the proposal under which the original petition attempted to qualify. The USCIS position is that the petitioner must demonstrate eligibility for the visa petition at the time filing, the petitioner cannot secure a priority date based on future events, and USCIS cannot consider facts that only came into being subsequent to the filing of the petition. For example, the petitioner in APR232014_01B7203 invested through a loan model with indirect job creation, which a non-Regional Center investor may not do, and then, in response to an RFE, tried to change track and present USCIS with a new and different business structure and investment terms. The AAO agreed that: “Purchase and termination of ___ in response to the director’s request for evidence in order to meet the direct job creation requirements reflects a material deviation from the business structure claimed at the initial filing of the petition. The business structure change constitutes an effort to make an apparently deficient petition conform to users and regulatory requirements. Therefore, users must analyze the petition only on the basis of the original claims.” In the MAY122014_01B7203 case, the petitioner’s problem was that “at the time of filing, he had invested only $105,000 and had not, at that time, properly committed the balance of the required investment with a secured note or agreement.” The moral of the material change story is to get your ducks in a row before filing an I-526 Petition. Don’t just throw something together and file it, assuming that the worst case scenario is that USCIS will send Requests for Evidence giving you a chance to go back and forth supplying new information and fixing problems until the petition is finally approvable. The worst case scenario is that the content of that original I-526 would need such material changes to become approvable that USCIS will say (to paraphrase): Forget it. This filing was crap, and if you have new facts and a new story now then you can go back to square one and file a new petition for us to consider. (For the official statement, see pages 24 to 27 of the EB-5 Adjudications Policy memo.)

The USCIS Regional Center list continues to expand by leaps and bounds, reflecting hard work by the USCIS Investor Program Office and adding to a crowded field. We’re continuing to see many multi-state RCs and many RCs associated with operators who control multiple RCs.

Additions to the USCIS Regional Center List 5/6/2014 to 5/27/2014

Filed under EB-5 Law & Policy, EB-5 Statistics, New RC

5/8 Colucci Remarks

May 20, 2014 Leave a comment

USCIS has published the Prepared Remarks of Nicholas Colucci, Chief, Immigrant Investor Program at the IIUSA EB-5 Regional Economic Development Advocacy Conference on May 8, 2014 in Washington, DC. Thank you, USCIS! We really appreciate this transparency. Now everyone can review exactly what Mr. Colucci said regarding economic impact analysis.

Filed under Updates from USCIS

Updates from the IIUSA Economic Development Advocacy Conference

May 12, 2014 3 Comments

This year’s IIUSA annual meeting in Washington DC on May 7-9 was remarkable not so much for what was said but for who spoke. At the IIUSA Washington DC meeting back in 2011, the mood was depressed and we were lucky to get prominent attorneys on the podium. Now in 2014, EB-5 is booming and we were honored by the presence of dignitaries including three members of Congress; top executives from USCIS, the State Department, the SEC, FINRA, the Department of Commerce, and even CBS; and chairpersons from eight of China’s provincial entry-exit associations.

A few things I learned from the conference:

  • USCIS Immigrant Investor Program Office Director Nicholas Colucci did not break any major news in his speech – appropriately, I think, given the private context. But his presence was a generous and appreciated gesture. [UPDATE: You can now read exactly what Mr. Colucci said, as his prepared remarks have been published on the USCIS website.] He reiterated that the Washington DC office is still ramping up on personnel, with a goal to reach 100+ staff by the end of the fiscal year; is investing additional resources in customer service through the immigrant investor program mailbox; and is taking care to provide expert training in areas including business organization and documents, SEC issues, money-laundering, decision-writing, and customer service. One of his new ISOs sat at my table and presented herself very nicely – with just the bright, collected, solicitous manner and edge of East Coast hustle that you’d want in the adjudicator for your case. I have to say that she impressed me much more than the aggrieved-looking examiners lurking at the back of the room at the California Service Center in-person EB-5 engagement in 2010. I suppose that not having to work in a Cold War bunker is good for morale. She is one of the ISOs who is new to EB-5 but not new to DHS. Mr. Colucci noted that his office has developed a 4-6 week certification process for ISOs hired from other departments, with the goal to get adjudications up to speed as quickly as possible – and at least to have the number of decisions exceed the number of receipts each week. Mr. Colucci gave us several things to look forward to: draft regulations revisions by September 15, filing tips based on analysis of RFEs, and – a surprise treat – a FY2014 Annual Report planned. Finally, he offered a few filing tips focused on economic impact analysis. He reminded economists to clearly explain economic model inputs used and to exclude ineligible inputs (e.g. some construction soft costs). He also emphasized a requirement that I haven’t previously heard made explicit by USCIS – that the economist must in all cases distinguish model direct and indirect components, not just provide an aggregate total. Economists are also reminded to break down the number of jobs associated with each distinct model input. We’re not sure how much to make of the fact that Mr. Colucci twice referenced examples of reasonable economic models and each time said “IMPLAN, REMI, and REDYN” and either accidentally or on purpose did not mention RIMS II – a model that’s currently not being updated by BEA but still very popular in EB-5 and still useable for now and being approved by USCIS, so far as we know.
  • Department of State Visa Controls Office Chief Charles Oppenheim discussed the intricacies of EB-5 visa availability and handed down his prediction that China retrogression will likely not occur until Summer 2015, with a May 2013 cut-off date possible at that time. He repeatedly advised the audience to only credit official information in the State Department Visa Bulletin and not to listen to bloggers. Apparently some of my kind have been panicking about immanent multi-year backlogs, so the audience was happy to hear from Mr. Oppenheim that we’re probably only looking at a 2-year backlog for Chinese investors (not too painful, considering that I-526s have been taking 1+ year to process anyway) and that this probably won’t occur until later next year. Mr. Oppenheim said that he would try to give 2-3 month’s notice of any new developments, and that otherwise we may expect news in the June 2015 Visa Bulletin. For those who are still confused about how the visa numbers process works, you may want to read articles on the Visa Office’s Immigration Statistics page and Ron Klasko’s simplified FAQ on the subject. For those who would like this problem to just be eliminated by an increase in the number of visas allocated to EB-5, call your Congressman and advocate.
  • SEC Division of Enforcement Chief Steve Cohen gave a speech that gently but pointedly emphasized the breadth of the SEC’s jurisdiction and enforcement interest in the EB-5 program.  While the SEC’s actions have so far focused on egregious fraud, Mr. Cohen noted that fraud is fraud whether egregious or not, that the SEC is concerned by any kind of misstatement (with its attention particularly drawn by Regional Center websites that state or imply that “approval by USCIS” means that the federal government provides a cloak of integrity to the Regional Center’s activities), and that SEC will attend not only to fraud but also to failure to comply with registration requirements. Rumor at the conference confirmed that some Regional Centers have recently been contacted by the SEC regarding registration issues.   To remind yourself about the requirements involved, you can review materials and posts around the USCIS/SEC joint conference call.  Regarding the SEC’s enforcement philosophy, Mr. Cohen stated that ignorance is not a defense, that the agency will take into account good faith compliance efforts and does not want to eviscerate the program, and that you’re strongly advised to approach the SEC for help to fix problems before the SEC comes to you to tell you that you have a problem.
  • FINRA Directory of Emerging Regulatory Affairs Kavita Jain joined Mr. Cohen and discussed how to get on the right side of registration requirements. Ms. Kavita noted that FINRA has been seeing an increase in applications related to EB-5 players and activities, and listed areas of concern for FINRA including due diligence, risk disclosures, suitability analysis, and finder’s fees.
  • Other notes. See IIUSA’s post on highlights from the Advocacy Conference for a more comprehensive summary and links to resources provided at the conference.
  • Mark your calendars. IIUSA is hosting its annual Trade Mission to China September 6-10, 2014 and the 4th annual EB-5 International Investment & Economic Development Forum in San Francisco on October 22-24, 2014.  Details here.

Filed under EB-5 Events, EB-5 Law & Policy

FY2014 Q1 EB-5 petition data, new RCs (CA, FL, WA)

May 6, 2014 3 Comments

USCIS has posted EB-5 petition processing statistics for the first quarter of FY2014 (October to December 2013) on the Immigration and Citizenship Data page. I hope that the increasing volume of I-526 decisions reflects operational improvements, and not just California Service Center adjudicators hustling to get files off their desks ahead of the February 2014 hand-off to the new Washington DC Investor Program Office. In any case the I-526 trend is significant, with the number of approvals increasing by around 20% every quarter last year (and the total number of decisions up 41% between the last two quarters).  This is good news for processing times, and also an indicator that we’re accelerating toward the annual EB-5 visa cap. USCIS has cautioned before against reading much into the number of denials that happen to occur in any given quarter, but I’m still intrigued by the recent spike in denied petitions. It will be interesting to see how second quarter statistics look, with new staff handling I-526 and the CSC free to focus on I-829 petitions. I’ve visualized USCIS quarterly data in the following charts.

q12014I-526 q12014I-829

Meanwhile, the IPO is continuing to crank out I-924 decisions.

Additions to the USCIS Regional Center List 4/29/2014 to 5/5/2014

I will be posting from the IIUSA annual meeting this week, and look forward to seeing you there.

Filed under New RC, Updates from USCIS

Regulatory changes, processing times, retrogression, ELIS, articles, new RCs (CA, CT, DC, FL, GA, IL, MA, MD, NJ, NY, PA, TX, VA, WV)

May 2, 2014 Leave a comment

Highlights of recent EB-5 activity:

  • Feedback on regulatory changes: On 4/23, USCIS hosted a “Regulatory Changes Listening Session” to solicit stakeholder input into the process of revising the EB-5 regulations, and invited the public to contribute additional suggestions through the USCIS Idea Community. You can get a recording of the listening session from IIUSA (post here) and log into the USCIS Idea Community any time through May 8 to provide your feedback and vote on suggestions made by others. Comments made so far include a few informed, constructive recommendations focused on the greater good and many that are either based on basic ignorance about what’s within the scope of regulatory changes or motivated by narrow interests such as trying to reduce competition or divert risk/responsibility or even shut down the Regional Center program entirely. I admit that I fall among those who are not motivated to offer disinterested input and take on some of the sheer hard work of drafting much-needed improvements to the current regulations. But I’m logged into the Idea Community and ready to vote for anyone who is so broadminded and generous with his or her time and expertise!
  • Processing times: USCIS updated IPO processing times (as of 3/31, posted 5/1) that show improvement overall, with 13.2 months for I-526, 8.9 months for I-829, and 10.6 months for I-924.
  • Retrogression: Mr. Charlie Oppenheim of the Department of State’s Visa Office is quoted as saying on April 21 that “retrogression for China EB-5 in the 2015 fiscal year [10/01/2014-09/30/2015] seems almost inevitable, as there are over 7,000 I-526 applications pending and 80% are from China.” For more detail, see “Update on EB-5 Visa Numbers” by Jennifer Hermansky. (For background on the retrogression issue, see FAQs on EB-5 Quota Backlog by H. Ronald Klasko.)
  • ELIS: Martin Lawler has written a useful account of his firm’s experience filing EB-5 petitions through USCIS’s new ELIS system. See “ELIS – Not the Island – Issues with Electronic Filing of I-526 Petitions” on the IIUSA blog.
  • Other articles: AILA and IIUSA have published a glossy report titled “Basic Background About the EB-5 Program” that can be used as an advocacy tool. The EB-5 Insights blog has a couple interesting posts by William Mack on Fee-based foreign finders and SEC/FINRA registration requirements and Suitability and AML Concerns for Broker/Dealers Engaged in the Offering and Sale of EB-5 Investments.

New Regional Centers

Additions to the USCIS Regional Center list 4/3/2014 to 4/28/2014:

Filed under EB-5 Law & Policy, New RC

New AAO Decisions, Processing Update, New RCs (AR, AZ, FL, MI, NM, PA)

April 4, 2014 1 Comment

New AAO Decisions
USCIS has started uploading AAO decisions to the folder for I-526 and I-829 Decisions issued in 2014. The decisions continue to show granular analysis of source of funds problems and continue to scold USCIS on the issue of deference in the wake of the 5/30/2013 EB-5 policy memo. Both FEB102014_01B7203 (a direct case) and FEB102014_02B7203 (a Regional Center case) appear from the AAO’s fact summaries to have been very faulty filings, yet the AAO nevertheless states that USCIS “did not properly deny the petition” because (in the direct case) “the director has not articulated to the petitioner in this matter why the business plan for the first investor was sufficient and the same business plan for the petitioner was insufficient or why deference was not applied to the petitioner’s business plan,” while in the Regional Center case: “the director never explained in writing, as an initial assessment, why the business plan, the business plan addendum, and the economic impact analysis filed in support of the instant petition were not due deference, either because of a material change in the underlying facts or otherwise.” Unfortunately for the direct EB-5 investor, the AAO still dismissed her appeal because her investment amount was $499,955, not $500,000, and therefore did not meet the threshold of a qualifying investment. A good reminder for all to pay attention to those bank fees.

Processing Times Update
An April 3rd update to USCIS Processing Time Information for the Immigrant Investor Program Office indicates that, as of 2/282014, USCIS was working on I-526 filed 5/18/2013, I-829 filed 4/9/2013, and I-924 filed 1/25/2013.

Regional Center Approvals
New Additions to the USCIS Regional Center List 3/19/2014 to 4/2/2014

Filed under EB-5 Law & Policy, New RC

What’s New (processing times, statistics, legislation, AAO deference decision, and new RCs in CA, FL, ME, NY, WA, WI)

March 21, 2014 1 Comment

Processing Times: As promised in the 2/26 EB-5 stakeholder meeting, a new section has been added to the USCIS Processing Time Information page. Now, instead of selecting “CSC – California Service Center” from the dropdown menu at the bottom of the page, select “IPO Processing Dates” button to see processing times for I-526 and I-829 (with I-924 promised to appear any day now). The news still isn’t good (indicating that as of January, IPO was working on I-526s filed April 2013 and I-829s filed May 2012), but at least it’s easy to check.

EB-5 Petition and Visa Statistics: This week USCIS updated its Immigration and Citizenship Data page with reports on I-526 and I-829 adjudications through Q4 2013. The stats show that USCIS made decisions on fewer EB-5 petitions overall in FY2013 than it did in FY2012, despite an increasing number of receipts. On the bright side, the second half of FY2013 had a significantly higher volume than the first half, particularly for I-526 adjudications, so we can hope for a continuing upward trend. On the dark side, pending petitions topped 7,000 for I-526 in 2013. For visa statistics, note that the State Department has reorganized its website, with the annual Report of the Visa Office from 2000 to 2013 now collected on one Visa Statistics page. To see the EB-5 visa numbers (itemized by Country of investor origin) for any year, open that year’s report and visit Section V. Part 3. For statistics related to the volume, use, and impacts of EB-5 investment, note that IIUSA has published a sneak peek of data highlights from the IIUSA-commissioned 2012 Economic Impacts Report, and will be featuring exclusive new program data in its forthcoming edition of the Regional Center Business Journal.

Legislation: The House is talking about EB-5 again, with a new bill proposed this month (The American Entrepreneurship and Investment Act of 2014) that would permanently authorize and make some modifications to the EB-5 program. See Laura Reiff’s post “House Member Introduces Bi-Partisan Immigration Legislation to Enhance and Augment the EB-5 Regional Center Program”

New AAO Decision: USCIS has uploaded another 2013 AAO decision (DEC302013_01B7203) on a Regional Center case in which “the AAO remands the matter to the chief for a new decision that explains its compliance with the May 30, 2013 Policy Memorandum.” The AAO found that “the chief did not explain why the economic impact analyses filed in support of the instant petition were not afforded due deference.” The decision requires USCIS to support its determination that deference is not warranted by providing examples of underlying change to material facts between the impact analyses supporting the approved Regional Center application and the denied I-526 petition. (See also SEP232013_01B7203, another deference-related decision on a different Regional Center case.)

New Regional Centers 3/6/2014 to 3/18/2014

Filed under EB-5 Law & Policy, EB-5 Statistics, New RC

New RCs (CA, CO, CT, DE, GA, MD, NC, NJ, NM, NY, OH, PA, PR, SC, TX)

March 7, 2014 Leave a comment

USCIS continues to expand its list of approved Regional Centers, with many of the new entries representing additional approvals for applicants already operating multiple RCs. The one new RC kind enough to post its approval letter was processed in only three months. I look forward to receiving contact information and approval letters for each of these new centers.

New Regional Centers at www.uscis.gov/eb-5centers 2/7/2014 to 3/5/2014

Filed under New RC

2/26 Stakeholder Meeting Updates

March 6, 2014 Leave a comment

UPDATE: USCIS has posted an Executive Summary of the call.
Last week, EB-5 stakeholders enjoyed the “first of a new series of quarterly engagements” with USCIS. It’s been over a year since the last EB-5 stakeholder meeting, so this one was very substantive. I faint at reproducing everything of importance from the call, but am sharing my recording (click here to download it) for the benefit of anyone who would like to review details. Other bloggers (Mona Shah and EB-5 Insights) have also posted highlights, and IIUSA members can access an excellent article from Robert Divine. (See also H. Ron Klasko’s excellent posts on “EB-5 Stakeholders Call – What We Learned,” and “Unanswered Questions from the EB-5 Stakeholders Meeting“).

The first 23 minutes of the call feature program updates from Daniel Renaud, Deputy Associate Director of USCIS Field Operations Directorate, and Nicholas Colucci, USCIS EB-5 Program Office Chief. A few highlights:

  • Priorities: Mr. Renaud stated five goals for the EB-5 program: reduce processing times, improve filing options and reduce paperwork, update regulations to align with statute and improve initial filings, improve customer service, and solicit stakeholder input more frequently
  • Office Updates and Staffing: The EB-5 program office in Washington DC currently has 53 staff, including 20 economists and 25 adjudicators. 80% of the staff have advanced degrees, including 20 law degrees. In the “near term,” new hires (mostly adjudicators) are expected to increase the DC staff to 75, with a goal to reach about 100 staff by the end of the fiscal year. A training program has been implemented to bring adjudicators up to speed within 5 weeks of entering on duty. New hiring compensates for the loss of about 35 California Service Center personnel who had adjudicated I-526 and I-829. As of 2/14/2014, all I-924 and I-526 petitions are being adjudicated in Washington DC. A team at the California Service Center will continue to work with I-829 and I-485 through the end of the year.
  • Processing: Some I-526 petitions have already been filed through the ELIS electronic filing system, and USCIS is continuing to test this system while also unrolling a document library that can be used for EB-5 cases. USCIS prioritizes improving processing times, particularly for Form I-526, by the end of this year, though further delays are expected in the short term as new adjudicators are hired and trained. USCIS repeats its commitment to a basically FIFO system, and claims that no one type of petition can expect faster processing than others. USCIS promises to update its website shortly with I-924 processing times refreshed monthly. (The 2012 times were deleted from the USCIS RC Page the day after the call, so we’ll see if new info appears there soon.)
  • Regulations and Policy: USCIS is preparing to launch into revising EB-5 regulations to address fraud and national security issues (a priority as a result of recommendations from the Office of Inspector General’s audit report) and to generally improve program efficiency and procedures. Stakeholder feedback will be solicited through an upcoming stakeholder meeting to be announced and through the USCIS Idea Community (email to follow). USCIS is also working with the Office of Policy and Strategy to put together a comprehensive policy manual that will consolidate existing memoranda and the AFM into one policy guidance document.
  • Filing Tips: Mr. Renaud promises that filing tips will be published soon on the USCIS website, and mentions five on the call: please don’t send duplicate copies of supporting evidence; translation documents need to comply with the regulations (complete, not summary, and accompanied by translator certification that complies with the regulations); don’t provide outdated TEA letters; Regional Center I-526 petitions should include a cover letter with the name of the new commercial enterprise and the name, receipt, and ID number of the Regional Center; for I-924 applications, state in cover letter the type of approval requested: hypothetical, actual, or exemplar.

Minutes 23-50 of the call were devoted to prepared responses to stakeholder questions submitted in advance of the call. This section was handled by Robert Cox, Deputy Chief of the EB-5 Program Office. I won’t reproduce the Q&A, which was very carefully worded, but provide time references to my recording so that you can revisit topics of interest to you:

  • 23:45 Clarify types of RC applications (hypothetical and actual with exemplar), and whether a project can be approved as an actual project with deference if it is not accompanied by an exemplar I-526.
  • 25:45  How much detail does a “hypothetical” plan need to have?
  • 27:45 What is “an objective mistake of fact or law” that eliminates deference?
  • 29:15 Will USCIS accept a TEA constructed from an aggregation of census tracts from an investor, or must this be in the form of an official state designation?
  • 32:00 What is the standard for determining the geographic range of a regional center, and what kind of expansion outside the approved boundaries of the RC would be accepted?
  • 35:20 May an EB-5 new commercial enterprise invest in a non-profit job-creating enterprise?
  • 36:40 May one EB-5 investment be divided among businesses in separate TEAs?
  • 37:40 May a developer have a guaranteed return so long as the promise is not made to the investor?
  • 39:20 May Regional Centers be bought and sold?
  • 40:40 May a business that purchases assets of a previously-existing business qualify as a new commercial enterprise?
  • 43:30 What limits on use of bridge financing should investors know about?
  • 46:00 What is the legal standard for allowing EB-5 investors to gain credit for guest expenditure jobs?
  • 49:30 At the I-829 stage, what evidence will be accepted for creation of model-derived jobs?

The remainder of the call includes live Q&A. In my opinion, this is less useful since USCIS apparently instructs its people to avoid giving definitive answers off-the-cuff to call-in questions. But you’re welcome to review the recording (noting that I got briefly disconnected at 1:18 and lost 8 minutes).

USCIS clearly put a lot of work into this call, which was much appreciated. I look forward to the in-person engagement promised “in late Spring or early Summer.”

Filed under Updates from USCIS

Coburn letter

February 21, 2014 1 Comment

The buzz this week has been over a letter sent by U.S. Senator Tom A. Coburn (R. Oklahoma) to all Regional Centers with content as follows:

As Ranking member of the US Senate Homeland Security and Governmental Affairs Committee, which has oversight over the Department of Homeland Security, I am writing to learn more about ___ Regional Center’s participation in the EB-5 immigrant investor program. Every Regional Center approved by USCIS will receive a similar request to help the Committee better understand the EB-5 program. To understand more about ___ Regional Center, please provide the following information by March 13, 2014 in an electronic format:

  • Any approval from USCIS to participate in the EB-5 program regarding the regional center and its business plan, including any subsequent recertification;
  • The total annual amount of investment and the number of individuals by country of origin making investments through the regional center since it has been in operation;
  • The name, address, and a description of each business in which the regional center has made an investment of funds and the number of jobs created by each investment;
  • Any fees charged to EB-5 applicants or received by the regional center, including amount and description;
  • A list of any current or former corporate officers of the regional center, including title, position, and dates of employment, and
  • The name and address of any individual or entity- either foreign or domestic- that the regional center has an agreement with to provide legal, accounting, recruiting or consulting services, as well as a description of the service provided.

Feelings are mixed about this. It’s nice to see Congressional concern and attention, and I’m a long-time advocate of transparency about Regional Center backers. But one wonders why Senator Coburn decided to circumvent USCIS, which implemented the I-924a annual reporting process to collect similar information from Regional Centers to report to stakeholders such as Congress. Also, what Senator Coburn, not being a well-known friend of immigration, intends to do with the responses he receives. IIUSA has referred its members to two relevant articles: “MINORITY RULES: WHY COMPANIES SHOULD TAKE SERIOUSLY THE INCREASING TREND OF MINORITY PARTY-LED CONGRESSIONAL INVESTIGATIONS” by Steven R. Ross, Raphael A. Prober, and Megan L. Greer, Akin Gump Strauss Hauer & Feld LLP, and A Client’s Guide to Congressional Investigations Akin Gump Strauss Hauer & Feld LLP. Also see Ron Klasko’s post on this topic.

Filed under EB-5 in the News

New RCs (CA, CNMI, DC, FL, MD, NJ, NY, PA, OR, VA, WA), Brookings Report

February 7, 2014 Leave a comment

New entries to the USCIS Regional Center List 1/22 to 2/6/2014:

The Brookings Institution has released a report on “Improving the EB-5 Investor Visa Program: International Financing for U.S. Regional Economic Development.” The report was carefully researched (and even cites me), provides a very nice overview of the EB-5 program’s history and current status, and has awesome graphics. To me its conclusions and recommendations seem theoretically reasonable but practically innocent, making the report not as significant as it might have been. But it’s still a worthwhile reference.

Filed under EB-5 in the News, New RC

2014 Events, EB-5 Stats, New AAO Decisions, New RCs (CA, CO, FL, GU, MD)

January 23, 2014 1 Comment

EB-5 Events
It’s time to sign up for the best EB-5 event of the year: IIUSA 7th Annual EB-5 Regional Economic Development Advocacy Conference in Washington, D.C. May 7-9, 2014. I look forward to seeing you there! Also notice the IIUSA 2014 Webinar Series, with monthly webinars on topics including industry advocacy, securities laws, due diligence, retrogression, economic impact analysis, EB-5 in the capital stack, adjudication trends, TEAs, I-924a, and escrow and fund administration. The IIUSA webinars last year were substantive and timely, and I look forward to this new series.

EB-5 Statistics
If you’re interested in trends in receipts, approvals, and denials of EB-5 petitions, see: “IIUSA Obtains I-526/829/924 Adjudication Data for FY2013, Releases Comprehensive Dataset (1991-2013).” The FY2013 data shows a growth in receipts over 2012 of 8% for I-526 petitions, 71% for I-829 petitions, and 82% for I-924 applications. USCIS already doubled the number of approved Regional Centers in FY2013 by approving 220 applications, and – unless many of those 436 new I-924s received in 2013 were amendments – RCs will be facing a very crowded field moving forward. We’re on track to hit the annual EB-5 visa allocation cap of around 10,000 based on filings, with the only uncertainty being whether USCIS can manage to process enough I-526s in one year to make that happen (and whether processing times will speed up enough that Chinese investors would even notice being retrogressed). As with most things in EB-5, this issue is complicated. If you want to read more, see “Department of State Predicts EB-5 Visa Retrogression for China” on the EB-5 Insights Blog and “FAQs on EB-5 Quota Backlog” by Ron Klasko.

New AAO Decisions
Since last time I checked, USCIS has uploaded 18 new 2013 AAO decisions on I-525 cases. (May 24 to June 18, and September 23 to November 15). Besides RFEs, which aren’t public, AAO decisions are my best chance to see what’s going on behind the scenes with adjudications and current policy applications. For me, the most interesting decisions in this batch are SEP232013_01B7203, which addresses a Regional Center’s attempt to claim deference to prior approvals, refers extensively to the 5/30 policy memo, and considers what amendments mean; JUN052013_01B7203, which withdraws the director’s assessment of a business plan’s credibility; and MAY242013_01B7203, which discusses which business activities prior to I-526 filing will help the investment to qualify as “fully invested and placed at risk.” Nearly all AAO decisions on I-526 cases include a section on source of funds problems. People involved in that area may particularly want to read JUN182013_03B7203, which goes into detail on what went wrong with a typical China source of funds scenario involving real estate. Or for comedy, you can review MAY242013_02B7203, which treats a petition for investment in a business that will trade in healthcare products and/or operate a restaurant and/or import textiles and/or export fly traps and avocado oil.

New RCs
New entries to USCIS’s Regional Center list 12/30/2013 to 1/22/2014
Live in America-California Regional Center (California)
U.S. Gateway Regional Center, LLC (California)
InvestAmerica EB-5, LLC (Colorado)
My Florida Regional Center, LLC (Florida)
E Development Corporation dba EDC (Guam)
Birch MD BioPark Regional Center (Maryland) USCIS Approval Letter

Filed under EB-5 Events, EB-5 Statistics, New RC

New RCs (CA, FL, IL, WA), retrogression, program assessments, due diligence

December 31, 2013 4 Comments

By my unofficial count, USCIS approved 213 Regional Centers in calendar year 2013. This brings the current number of Regional Centers to 424 – double the number this time last year. We can thank the EB-5 program office in Washington DC, which opened in April and has been handling I-924 applications, and the May 30th EB-5 Policy Memo, which brought new clarity and flexibility to Regional Center adjudications.

New RCs added to the USCIS list 12/11/2013 to 12/23
Global Investment Regional Center (California)
U.S. Golden Pacific Regional Center, LLC (California)
Valley Inception Regional Center (California)
EB-5 South Florida Regional Center, LLC (Florida)
Illinois Valley Regional Center (Illinois)
Great Ocean Regional Center (Washington)
West Washington United, LLC (Washington)

The California Service Center has been working hard on I-526 petitions but still faces an enormous backlog, with 7,083 petitions pending or awaiting customer action as of October 2013. (To see the trends, use the “Check My Case Status” tool on the USCIS website.) Even with the processing delays, a record 8,567 EB-5 visas were used in FY2013, approaching the annual quota of around 10,000 visas. For analysis of what this means and issues we can expect in 2014, see US Dept. of State Statistics on EB-5 Visa Usage Indicate Backlog in FY2014 is Likely (IIUSA Blog, 12/23/2013) and THE IMPACT OF CHINESE QUOTA RETROGRESSION ON EB-5 INVESTORS AND EB-5 INVESTMENTS by Tammy Fox-Isicoff and H. Ronald Klasko.

2013 has been a year of intense scrutiny for the EB-5 program. Significant new entries in the log of criticisms and defense include Robert Divine’s December 23rd article in The Hill Immigration service’s investment program is a winner, and the DHS Office of Inspector General report on the EB-5 program (see The Office of the Inspector General Releases Report Critical of the USCIS Administration of the EB-5 Regional Center Program by Laura Foote Reiff and IIUSA Statement on EB-5 Program Report by the DHS OIG).

A common theme through the highs and lows of 2013 has been the importance of due diligence. So as the year closes, here are links to some of my favorite due-diligence-related articles and resources from the year.

Filed under EB-5 Resources, New RC

IIUSA Alert, New AAO Decisions, New RCs (AL, CA, FL, HI, IA, LA, MS, NC, NE, NJ, NY, OH, OR, PA, SC, TX, WA)

December 18, 2013 Leave a comment

The sensational EB-5 stories proliferating on the Internet inspire Ms. Boring Verifiable Detail here to get back in gear. IIUSA has issued a notice reacting to the hype funded by opposition to President Obama’s nomination for DHS deputy secretary, and I encourage you to read the IIUSA Member Alert here. I’ll leave you to the Washington Post if you want spicy whispers suggesting that EB-5 is an unchecked den of iniquity, but if you want the dull details of what actually happens to people who try to game the EB-5 system, note that USCIS has uploaded more AAO decisions on I-526 cases. (The February, May, September, and October decisions in the Decisions Issued in 2013 folder are new since last time I checked.) The decisions give a behind-the-scenes look at USCIS’s efforts to scrutinize and challenge EB-5 petition detail, and to deny any filings that don’t toe the line of clean money fully invested in business activities that can create qualifying jobs. I’m particularly interested in MAY072013_01B7203, which discusses investment and job creation timing and nexus; MAY172013_01B7203, a decision on a New Orleans RC case that overturns challenge to a state TEA designation but confirms the need for a portfolio investment to identify specific fund uses at the I-526 stage; and SEP052013_03B7203, which explains the options for an I-526 petition when the sponsoring RC has been terminated. The later decisions include an opening reminder that: “This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions.” Nevertheless, we get so few official policy announcements that I take what I can get of hints, and am quoting below a whole section from the 5/7/2013 decision’s discussion of what has the burden to create jobs: the “new commercial enterprise” or the individual EB-5 investment. This is the theoretical issue at the heart of the extremely significant question of which job creation an investor can claim, and how the timing of capital release affects job counts. The 5/7 AAO decision emphasizes the individual investment, and treats investment/job creation nexus as “before/after” issue rather than allowing a “but for” argument. We often see RFEs from adjudicators struggling to see any factors in causation besides chronology, but this is the first time I remember seeing the AAO wax theoretical on the matter. Any thoughts from the attorneys out there?

Section quoted from MAY072013_01B7203, AAO decision on an I-526 petition for direct investment.
…On November 7, 2012, the petitioner filed an appeal with U.S. Citizenship and Immigration Services (USCIS). On appeal, counsel asserts: (1) the three jobs created prior to the petitioner’s initial investment should be attributed to the petitioner; (2) the two jobs created between the petitioner’s initial investment and the maturation of the NCE’s certificate of deposit should be attributed to the petitioner…
1. Employees Hired Prior to Investment
Regarding the three employees hired prior to the petitioner’s initial investment, counsel’s appellate brief asserts that these individuals’ jobs should be considered to have been created due to the petitioner’s investment. Counsel characterizes the hiring of personnel prior to an investor’s infusion of capital as common and a business reality. At issue, however, is not whether the order of events constitutes a normal business-related process, but whether, by following this order of events, the petitioner has established that his investment is responsible for any earlier job creation. Counsel’s appellate brief also states: ”The Regulations merely state that to qualify, it must be shown that the new commercial enterprise (not ‘the investment’) will create full-time employment for not fewer than 10 qualifying employees.” Counsel further asserts that had Congress intended to “require that employment creation strictly follow the date of an alien investor’s investment transfer, it would have specifically required proof that ‘the investment will create not fewer than ten (10) full-time positions …. ‘ But as written, the statutory language focuses on the ‘new commercial enterprise’ instead.” The language counsel quotes does not specifically address situations involving multiple investors. The regulation at 8 C.F.R. § 204.6(g), however, does specifically addresses businesses for which there are multiple investors. Significantly, 8 C.F.R. § 204.6(g)(l) allows for a pooled investment with other EB5 investors “provided … each individual investment results in the creation of at least ten full-time positions for qualifying employees.” (Emphasis added.) Thus, in situations involving multiple investments, the regulatory language focuses on the “investment” as creating the jobs rather than the NCE. Furthermore, under the initial evidence requirements, the regulation at 8 C.F.R. § 204.6(j) states: “A petition submitted for classification as an alien entrepreneur must be accompanied by evidence that the alien has invested or is actively in the process of investing lawfully obtained capital in a new commercial • enterprise in the United States which “Will create full-time positions for not fewer than 1 0 qualifying employees;” (Emphasis added.) The emphasized language implies that an alien has already invested or committed capital to the NCE, and that subsequent to this investment the required employment creation will result. Significantly, the regulations do allow for job preservation, but only where the petitioner invests in a troubled business. 8 C.F.R. §§ 204.6(e) (definition of troubled business), (j)(4)(ii). The petitioner does not claim to have invested in a troubled business. Counsel also references proposed policy guidance which states that an immigrant investor is not required to have already invested his or her capital in the NCE, as long as the investor establishes that he or she is actively in the process of investing the required capital. To be actively in the process of investing the required capital, the investor must demonstrate that his or her funds are actually committed to the NCE. 8 C.F.R. § 204.6(j)(2). The petitioner has not demonstrated any actual commitment of his funds prior to September 1, 2011. Regardless, the issue of whether the petitioner is actively in the process of investing is a separate question from whether USCIS will credit the petitioner with jobs in existence at a business other than a troubled business when the petitioner began investing. In light of the above, USCIS will not credit the petitioner with the employees hired prior to his investment. …
ii. Subsequently Hired Employees
Regarding the two jobs created after the petitioner’s initial investment but before the certificate of deposit matured, the AAO does recognize these jobs as being attributable to the petitioner’s investment as he had relinquished control of the funds to the NCE. It was the NCE that elected to invest the funds rather than to allow them to sit dormant in a bank account.

Also, a belated updated on new Regional Centers. In 2013 USCIS has approved about 205 new RCs, by my count, bringing the total number of RCs to 417 as of 12/11. I look forward to being able to link to the USCIS approval letters for each of these centers. In these days of rumors and misinformation, we really need basic transparency about the identity and mandate of all Regional Centers.

New RCs added to the USCIS list 11/18/2013 to 12/11/2013
New Orleans & Gulf Coast Regional Center, LLC (Alabama, Florida, Louisiana, Mississippi)
American California Regional Center (California)
North America Wind Power LLC (California)
San Diego Regional Investment Center, LLC (California)
American Builders Regional Center (Florida)
Florida Gateway Regional Center, LLC (Florida)
Live in America – Florida, LLC (Florida)
Eight Islands Regional Center, LLC (Hawaii)
Liberty Nebraska Regional Center, LLC (Iowa, Nebraska)
Ohio Regional Center, LLC (Ohio, Indiana, Kentucky) Approval Notice
Live in America – Northwest Regional Center, LLC (Oregon, Washington)
Global City Regional Center, LLC (New Jersey, Pennsylvania)
Related New York City Metro Regional Center, LLC (New Jersey, New York, Pennsylvania)
Birch North Carolina Regional Center (North Carolina)
Southeastern Higher Education Regional Center (South Carolina)
Civitas Laredo Regional Center, LLC (Texas)
Houston EB 5 Regional Center (Texas)
ACIC Management, Inc. Regional Center (Washington)
UPDATE: The name “Midwest EB-5 Regional Center LLC” was changed on the USCIS list to add a comma, not removed from this list as I previously reported in error.

Filed under EB-5 in the News, EB-5 Resources, New RC

New RCs (CA, CO, FL, NC, TX, VA, WA, WV), CSC complaints

November 20, 2013 Leave a comment

New Regional Centers
Additions to the USCIS list of approved Regional Centers from 10/31 to 11/18

EB-5 in the News
The most buzzed-about EB-5 article this week is a Washington Times piece: “Immigration staffers pressured to rush visas for wealthy investors” (Nov. 18, 2013). The story provides an interesting look behind the scenes of EB-5 adjudications at the California Service Center. Those who have waited months upon months and then years upon years for paperwork to be reviewed may find it hard to believe that the ISOs could feel rushed, or that finally appealing to supervisors/Congressman to help move things along could backfire by pushing those rushed ISOs into resentment and suspicion. This article gives disgruntled insiders’ views, and may encourage us to have more sympathy for adjudicators in their complex task — and perhaps to share their suspicion when some groups appear to succeed in orchestrating preferential treatment.

Filed under EB-5 in the News, New RC

Another cautionary tale (SD)

November 6, 2013 7 Comments

I work with Regional Centers on the project side, and I personally don’t see much drama. Not lawsuits, not backstabbing and sabotage, not FBI agents pounding the door, and certainly not murder. I can witness that EB-5 includes a whole world of solid, ordinary businesses working hard to put capital together to get projects done, unexceptionable immigrants putting money into those projects, and new business ventures resulting in job creation and profit for investors. But there are soap operas to be had. If you are a public agency thinking about partnering with a Regional Center, a Regional Center considering a relationship with an investor recruiter, an investor recruiter wondering how many pounds of flesh you can get away with taking, or if you just like a good juicy drama with all the fixings, you’ll want to keep up with the ongoing saga of South Dakota International Business Institute Regional Center. This case is poignant because it apparently involves many sincere and well-intentioned parties and no obvious fraud, and yet it’s a dramatic example of how partnerships can go very wrong. A true cautionary tale.

I quote a summary of the story from an article in today’s Argus Leader, the daily newspaper of Sioux Falls, South Dakota:

The Northern Beef story so far
CONCEPT: The Northern Beef Packers plant was an ambitious attempt to bolster South Dakota’s economy by slaughtering the state’s cows in Aberdeen instead of shipping them out of state.
FOREIGN INVESTORS: Through years of development and false starts, most of Northern Beef’s funding came from more than 100 foreign investors under the federal EB-5 program, where foreigners could get green cards for investing $500,000 in American businesses.
EB-5: The state of South Dakota worked closely with the EB-5 program. It was promoted by Richard Benda, who then was secretary of Tourism and State Development and oversaw overseas investors. State official Joop Bollen also created private companies to manage EB-5 investments. Bollen resigned the same day he signed a contract for his own business to handle the state’s EB-5 program.
INVESTIGATIONS: State and federal officials are investigating Northern Beef, its handling of the EB-5 program, and South Dakota’s economic development office.
BENDA DEATH: Meanwhile, Benda died in late October from a gunshot wound. His death is being examined by authorities.

KELO, the CBS-affiliated television station in Sioux Falls, South Dakota, has a useful summary of the issues involved: Five Questions In State Development Investigation.

UPDATE: See EB5news.com for detailed analysis of this story. “The Rise and Fall of South Dakota: A Cautionary Tale for EB-5 Public Private Partnerships Part I”
(November 07, 2013)

Filed under EB-5 in the News

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