EB-5 Public Engagement Update

Maria del Carmen Ramos
Maria del Carmen Ramos

On December 5, 2014, U.S. Citizenship and Immigration Services (USCIS) held a stakeholder conference call to update individuals interested in the Immigrant Investor Program (commonly referred to as the EB-5 Program). Amongst the attendees were: León Rodríguez, Director, USCIS; Nicholas Colucci, Chief, Immigrant Investor Program Office (IPO); Julia Harrison, Deputy Chief, IPO; Karin Karis, Division Chief, IPO; Lori Melton Division Chief, IPO; and John Lyons, Division Chief, IPO.

The panel shared the following FY 2014 statistics:

  • FY 2014 EB-5 filings represent over $5 billion in potential EB-5 investment funds.
  • The IPO received 11,000 I-526 Petitions in FY 2014; a 72 percent increase from FY 2013.
  • The IPO received 2,500 I-829 Petitions in FY 2014; a 106 percent increase from FY 2013.
  • The IPO received 270 I-924 Applications in FY 2014; a 34 percent increase from FY 2013.
  • As of today, there are 600 approved regional centers.
  • The IPO currently has 94 staff members and is expecting 10 additional staff members in the near future.
  • USCIS is processing I-526 Petitions in approximately 14.7 months, I-829 Petitions in approximately 8.6 months and I-924 applications in approximately 9 months.

The IPO’s operational plan for FY 2015 includes: improving customer service and outreach; maintaining high quality of services; improving the program’s integrity; site visits to validate supporting documents; and regional center compliance reviews with new commercial and government data to assist.

Below are a few of the highlights from stakeholder questions, IPO responses and the remaining portion of the stakeholder event:

Petition Processing: The IPO stated that while its general policy is to process petitions on a first-in first-out basis (FIFO), IPO gains efficiencies by grouping petitions by project and assigning those petitions to a team. Due to the transition to the DC location, the FIFO policy was a little off track in FY 2014; however, IPO expects that stakeholders will see “cleaner FIFO in the coming year.”

Deference – I-526 Petitions: The IPO confirmed that when I-526 petitions are filed through a regional center without an exemplar petition, IPO will treat the first I-526 petition as if it were an exemplar petition, and, upon approval, will give deference to its supporting documents for purposes of I-526 petitions based on investments in the same new commercial enterprise.

Common Occurrences in Source of Funds: The IPO explained that requests for evidence (RFE) are frequently issued to request evidence showing how the petitioner derived the funds that enabled him/her to acquire an asset that serves as collateral for a loan, which in turn is the immediate source of EB-5 investment funds. Specifically, the IPO states that a petitioner must show that they had sufficient income to purchase the asset that serves as the collateral. The IPO also noted that where the source of investment funds is based on accumulated income, they want supporting documents to include evidence of the accumulation of income over a period of at least five years.

Retrogression: USCIS is keenly aware of retrogression and the various impacts it may have on the EB-5 Program. Accordingly, USCIS has been actively working to develop policy guidance regarding I-526 Petition adjudication, the 2.5 year rule, whether job creation must occur within the two year period of conditional permanent residency, whether jobs created must be in existence at the time of I-829 Petition filing and what does “sustained” mean in the context of the I-829 Petition statute and regulations.

SEC and the IPO: In response to a question about the extent of SEC involvement in the program, IPO confirmed that SEC does not participate in the adjudication of cases, but that USCIS has a memorandum of understanding with SEC for “very limited review” in the event that securities fraud is a concern.

For more information, please contact Maria del Carmen Ramos at 813.227.2252 or mramos@slk-law.com.


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