USCIS Issues Final EB-5 Policy Memo

Posted on June 5th, 2013 by Brian Garcia

The long-awaited and final USCIS EB-5 Policy Memorandum was issued on May 30, 2013 and includes  beneficial changes and clarifications to the EB-5 visa program.  Among the significant advancements is the ability of designated regional centers to extend their geographic area, industries, business plans and economic methodologies without the need to submit a formal amendment to USCIS.  The memo expresses the view of USCIS that these changes do not require the filing of Form I-924.  This change alone will make the regional center program more efficient.

Among other bright spots in the memo, USCIS clarifies that it will grant deference to already adjudicated matters and will not attempt to re-adjudicate at later stages in the EB-5 process.  The memo finally clarifies that the use of bridge financing prior to the placement of EB-5 financing will not affect the job creation calculation.  Moreover, USCIS clarifies that EB-5 capital to be used to refinance bridge financing.  In connection with state TEA designations, USCIS will defer to states on the area making up the TEA and will only verify that reasonable methodologies were used to determine the levels of unemployment.  USCIS clarifies that not all jobs must be created and accounted for at the I-829 stage but that it will allow a showing of substantial compliance with job creation requirements and that the remaining jobs will be created within a reasonable time.  The USCIS memo expressly states that one year would be a reasonable amount of time to complete the job creation requirements.

The Final USCIS EB-5 Policy Memo is a worthwhile read for anyone interested in the EB-5 program and it can be found here.

Senate Comprehensive Immigration Reform Bill Includes EB-5 Enhancements

Posted on April 25th, 2013 by Brian Garcia

Posted on April 24, 2013 by admin

April 24, 2013

The Border Security, Economic Opportunity and Immigration Modernization Act of 2013 introduced in the U.S. Senate earlier this month proposes enhancements to the EB-5 visa program.  Among the proposals is to make the EB-5 Regional Center program permanent and remove its designation as a “pilot” program requiring reauthorization.  Since the EB-5 Regional Center program was authorized in 1993, it has been continuously reauthorized and is currently extended through September 30, 2015.

In addition, the Senate Bill proposes increasing the number of immigrant visas allocated to the EB-5 program from the current maximum of 10,000 allowed per U.S. fiscal year.  The Senate Bill also proposes that EB-5 immigrant visas be allocated only to the principal EB-5 investor and spouses and children be counted separately.  The recapture of unused EB-5 immigrant visas from prior years was also proposed.

In a proposal that has broad implications to all employment-based immigration preference categories, including the EB-5 visa program, the Senate Bill proposes eliminating per country quotas across the board.  Current immigration legislations and rules limit the number of immigrant visas that can be allocated to any one country.  Although historically this has not been an issue in the EB-5 category, the popularity of the program in China trigged an advisory from the U.S. State Department last year.  As we previously reported in our post of November 19, 2012, the U.S. State Department warned that current demand for EB-5 immigrant visas by Chinese nationals may require that a cut-off date be instituted for China. Fortunately, this did not come to pass and the EB-5 program has yet to face any challenges resulting from per country limitations.  Removing this requirement from the employment-based preference category altogether will be a welcome improvement.

USCIS Provides Update on EB-5 Unit Relocation

Posted on April 24th, 2013 by Brian Garcia

Posted on April 24, 2013 by admin

April 24, 2013

In July 2012, USCIS announced the creation of a new EB-5 Program Office to be led by a Chief of Immigration Investor Programs to be housed at USCIS headquarters in Washington, D.C.  USCIS expects the new Immigrant Investor Program Office to open this summer and the realignment of responsibilities between the new office and the California Service Center, where EB-5 adjudications are currently handled, will commence.  USCIS anticipates that the California Service Center will begin transitioning responsibilities to the Immigrant Investor Program Office as early as May 2013 and that the transition period will last through the end of the calendar year.  The California Service Center will continue adjudicating EB-5 applications until such time as the new office is fully staffed and trained.  The first EB-5 form type to be transitioned to the new office will be Form I-924 which is used by applicants seeking regional center designation and for amendments to existing regional center approvals.

USCIS Updates EB-5 Policy Memorandum

Posted on February 15th, 2013 by admin

February 15, 2013

As we previously reported, in an effort to streamline the EB-5 adjudication process, USCIS is developing an EB-5 Policy Memorandum and the latest version was posted for public comment on February 14, 2013.  The latest version of the EB-5 Policy Memorandum contains numerous businesslike advances demonstrating the commitment by USCIS to improve the EB-5 program.  The final date for public comments is Monday, April 1, 2013 and comments should be sent to opefeedback@uscis.dhs.gov.

The draft EB-5 Policy Memorandum is available here.

SEC Halts $150 Million EB-5 Investment Fraud

Posted on February 12th, 2013 by admin

On February 8, 2013, the Securities and Exchange Commission announced charges and an asset freeze against the Intercontinental Regional Center Trust of Chicago, A Chicago Convention Center and its principal, Anshoo R. Sethi. The SEC alleges that Sethi and his companies fraudulently sold more than $145 million in securities and collected $11 million in administrative fees from more than 250 EB-5 investors primarily from China. The SEC alleges that Sethi and his companies fraudulently misrepresented to EB-5 immigrant investors that they had acquired all the necessary building permits, that several major hotel chains were involved in the project and that additional financing was available to complete the project in addition to the EB-5 investment proceeds. The SEC further alleges that the offering materials falsely claimed that construction would begin in the summer of 2012 and occupancy of the first tower would occur by early spring 2014. In furtherance of their fraud, the SEC alleges that Sethi and his companies provided falsified documents to the U.S. Citizenship and Immigration Services to obtain preliminary approval of the project and the immigrant investors’ I-526 petitions. The SEC acknowledged the substantial assistance of the USCIS.

The SEC press release and SEC complaint can both be viewed by clicking here.

USCIS Issues EB-5 Operational Guidance on Tenant Occupancy Job Creation

Posted on December 28th, 2012 by admin

December 28, 2012

On December 20, 2012 U.S. Citizenship and Immigration Services (USCIS) released an operational guidance memorandum regarding EB-5 cases relying on job creation from tenant occupancy. This memorandum results from the numerous Requests for Evidence (RFE) issued by USCIS as early as February 2012.  The memorandum notes that the RFE’s sought evidence that the projected jobs attributable to prospective tenants occupying the commercial space created by the EB-5 capital would represent newly created jobs and not just jobs that the tenant had merely relocated. The USCIS stated that a “reasonable causal link” must exist between the EB-5 project and the job creation in order to permit the attribution of the tenant jobs.

Pursuant to the memorandum, the USCIS requires evidence that the claimed tenant job creation results, directly or indirectly, from the economic activity of the EB-5 project. With respect to indirect job creation, USCIS requires that the projections identify the number of newly created jobs that would not have been created but for the economic activity of the EB-5 project. As with all projections, USCIS requires they be supported by  economically and statistically valid forecasting tools  USCIS will evaluate the verifiable detail provided and the overall reasonableness of the methodology presented on a case-by-case basis. The memorandum gives additional information about the types of evidence and approaches that may be used and discusses the appropriate language in approval notices regarding the assumptions underlying the approval.

The memorandum states that the guidance “has been formulated following careful internal deliberation [and] consultation with sister government agencies,” along with a “review of responses to requests for evidence (RFEs) issued in February 2012 to a number of outstanding Regional Center applicants who relied on the tenant-occupancy methodology.” USCIS will apply the guidance to pending cases and cases filed on or after December 20, 2012, that rely on the tenant-occupancy methodology. The guidance does not rescind or supersede other EB-5 guidance.

The memorandum is available here.

EB-5 Adjudications Moving to DC

Posted on December 3rd, 2012 by admin

December 3, 2012

Today U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas stated during an EB-5 stakeholder conference call that within four to six months all EB-5 responsibilities will be moved to USCIS headquarters in Washington, D.C. A new EB-5 Program Office has been established and its chief will report to the USCIS Deputy Director. Director Mayorkas stated further that the goal of the new EB-5 Program Office is to establish a direct e-mail relationship between USCIS adjudicators and the public and to move away from the current standard of issuing Requests for Evidence. The new EB-5 Program Office will be responsible for adjudications, legislative affairs, policy and fraud detection.

In response to inquiries from participants, Director Mayorkas confirmed that USCIS is still working on the EB-5 guidance memorandum first posted on November 9, 2011 and updated on January 11, 2012.   The memorandum is available here.

U.S. Department of State Warns that Cut-Off Date Possible for China EB-5

Posted on November 19th, 2012 by admin

November 19, 2012

The Visa Office of the U.S. Department of State released projections in its Visa Bulletin for December 2012 showing that a cut-off date may be necessary for the China EB-5 preference category during the second half of fiscal year 2013. The Visa Office cautioned that its advisory is based solely on the current China EB-5 demand, and that demand patterns can change over time. The Visa Office stated that “[s]uch action would be delayed as long as possible, since while number use may be excessive over a 1 to 5 month period, it could average out to an acceptable level over a longer (e.g., 4 to 9 month) period.” The Visa Office also stated that “this should be considered a worst case scenario at this point” and it would be the first time a cut-off date has been established in the EB-5 preference category.  The Visa Office noted that this is why “readers are being provided with the maximum amount of advance notice regarding the possibility.”

The Visa Bulletin for December 2012 is available here.

The EB-5 Regional Center Pilot Program Extended for Three Years

Posted on October 1st, 2012 by admin

October 1, 2012

Congress has extended the EB-5 Regional Center Pilot Program for three years to September 30, 2015. This action followed a similar extension passed in the Senate in early August 2012.  Congress passed the bill on September 13, 2012 by a vote of 412-3 and the President signed the bill into law on September 28, 2012.