eb-5 visa Archives - The National Law Forum

New USCIS Policy Announced at March 3, 2017 Stakeholders Meeting: Regional Center Geography

At the EB-5 Stakeholders Meeting in Washington DC on March 3, 2017, USCIS announced that I-526 petitions filed for a regional center project in an area not already within the regional center’s approved geography may be denied if filed on or after December 23, 2016.

Under the newly announced policy, a regional center must first have received approval of its expanded geography before I-526 petitions may be filed. Petitions filed before geographic amendment approval will be deniable due to ineligibility at the time of filing.

The announced policy reverses the policy in the May 30, 2013 USCIS EB-5 Policy Memorandum which states that “formal amendments to the regional center designation, however, are not required when a regional center changes its industries of focus, its geographic boundaries, its business plans, or its economic methodologies” (emphasis added). Notwithstanding, investor petitions filed in reliance upon this written guidance are subject to denial if filed after December 23, 2016.

Why did USCIS use December 23, 2016 as the effective date for this new policy? According to Investor Program Office (IPO) officials present at the March 3 meeting, the instructions to new Form I-924 which became effective on December 23, 2016 should have alerted stakeholders of the change. However, stakeholder surprise and dismay at the March 3 meeting indicate that a policy change announced by instructions on a form is insufficient notice for a full reversal of prior policy by memorandum.

Rather, filing fee increases, filing place address changes, or even changes in filing procedure are more in the vein of changes typically made in new form instructions. Moreover, a form instruction that directly contravenes final written authority, such as the May 2013 Policy Memorandum, cannot itself be said to provide notice of policy change. Finally, while the instructions state that an amendment must be filed to “change the geographic area of a regional center,” the instructions do not also state that associated I-526 petitions must wait until such an amendment is approved. Neither is this requirement made in the instructions to the new Form I-526, also made effective on December 23, 2016.

USCIS may change its policy. However, it must do so transparently. The integrity of EB-5 adjudication is compromised when USCIS changes its policy without notice and applies those changes retroactively, as it has done here. Past examples of retroactive policy changes include denials based on findings of “indebtedness,” “tenant occupancy,” and “material change.” Unfortunately, we now add “unapproved geography” to the list. Hearing stakeholder feedback, USCIS will hopefully either revert to prior policy or at least rescind the December 23, 2016 effective date for a prospective one.

Stakeholder feedback on the March 3 meeting may be sent to ipostakeholderengagement@uscis.dhs.gov.

ARTICLE BY Carolyn S. Lee of Miller Mayer LLP

Immigration Through Investment: A Comparison of the U.S. EB-5 Program vs. the Quebec Immigrant Investor Program

There are currently many different investment immigration programs offered by countries around the world, all of which offer their own unique benefits. Two popular programs are the EB-5 Program in the United States and the Quebec Investment Immigration Program (QIIP) offered in Canada. The following comparison provides an in-depth look at the parameters of the two largest investor immigration programs in North America.

Minimum Investment Amount

For the U.S. EB-5 Program, the minimum capital investment amount is USD 500,000 for an investment into a Targeted Employment Area (TEA), which is a rural area or area of high unemployment. For all other investments, a minimum of USD 1,000,000 is required. However, it is anticipated that these minimum investment amounts may increase in the near future. Applicants to the QIIP must agree to invest CAD 800,000 risk free, which will be returned after 5 years. This investment is fully guaranteed by the Quebec government.

Minimum Net Worth

While there is no minimum net worth requirement for the EB-5 program, QIIP applicants must demonstrate net worth of at least CAD 1.6 million obtained through lawful means, either alone or together with their accompanying spouse/partner. Net worth includes assets such as property, bank accounts, stocks and bonds, investments, and pension funds, among others.

Type of Investment

EB-5 investors must make an at-risk investment into a new commercial enterprise, meaning any for-profit activity formed for the ongoing conduct of lawful business; this does not include non-commercial activity such as ownership of a private residence. On the contrary, investments under the QIIP are risk free and guaranteed by the Quebec government. The minimum investment amount will either be returned in full after 5 years or can be financed by a Canadian financial institution.

Job Creation Requirement

As mentioned above, there is no job creation requirement for the QIIP. However, each EB-5 investment must create at least 10 full-time jobs for qualifying U.S. workers within two years of the investor’s admission to the U.S. as a Conditional Permanent Resident. This can be either direct job creation for 10 identifiable W-2 employees at the commercial enterprise where the investor directly made his capital investment, or it can be indirect job creation, in which jobs are shown to be created collaterally or due to investor’s capital investment into a commercial enterprise affiliated with a regional center.

Can USCIS Raise EB-5 investment Amount Without Congressional Intervention?

The July 2015 Visa Bulletin Brings Little Change Since its inception as part of the Immigration Act of 1990, the EB-5 program has had a $1,000,000 threshold capital investment requirement, with that minimum decreased to $500,000 for projects in targeted employment areas. Last year, legislation was introduced and circulated on Capitol Hill that would raise this investment amount in varying proposals and conditions.

Some have argued that raising the amounts is necessary given inflation: $1 million in 1990 has the same buying power as $1,813,443 in 2015. Others argue the investment amounts should remain at their present level to compete with other countries’ investment programs and maximize EB-5 visa usage –which has been quite low for most of the program’s history, spiking to fulfill the ~10,000 annual quota allocation only relatively recently.

Suppose, though, that USCIS wanted to change the investment amount without waiting for Congress to agree on a new bill. Could it do so?

The answer is clearly yes, and there are several ways of so doing. INA § 203(b)(5)(C) provides:

Amount of capital required.–

(i) In general.–Except as otherwise provided in this subparagraph, the amount of capital required […] shall be $1,000,000. The Attorney General, in consultation with the Secretary of Labor and the Secretary of State, may from time to time prescribe regulations increasing the dollar amount specified under the previous sentence.

(ii) Adjustment for targeted employment areas.–The Attorney General may, in the case of investment made in a targeted employment area, specify an amount of capital required […] that is less than (but not less than 1/2 of) the amount specified in clause (i).

(iii) Adjustment for high employment areas.–In the case of an investment made in a part of a metropolitan statistical area that at the time of the investment–

(I) is not a targeted employment area, and

(II) is an area with an unemployment rate significantly below the national average unemployment rate, the Attorney General may specify an amount of capital required under […] that is greater than (but not greater than 3 times) the amount specified in clause (i).

The statute, written in 1990, utilizes the antiquated term “Attorney General;” however, immigration regulatory functions now fall under the purview of the Secretary of the Department of Homeland Security following the dissolution of the INS. Nevertheless, it is clear that Congress has delegated the power to increase the minimum investment amounts in several ways that would not require a statutory amendment:

USCIS, in conjunction with Labor and State, could increase the default $1,000,000 capital amount. Since $500,000 would be less than the increase, the TEA minimum would also need to be increased;
USCIS could change the TEA amount, provided that it remains at least 1/2 of the non-TEA investment amount; and/or
USCIS could increase the investment amount to $3,000,000 presently for projects which are:

a. In metropolitan statistical areas;
b. Not in TEAs;
c. Have unemployment rates which are “significantly below” the national average.

It is worth noting that Form I-526 already takes into consideration investments made in such “upward employment areas” even though they do not presently exist – see Part 2.b.

It is difficult to predict the likelihood of any of these events occurring. Any increase would likely create significant market disruption unless adequately anticipated and planned. Stakeholders would also need to understand and have input on the terms of grandfathering for pending filings, securities offerings, and initial investments so that the transition does not shutter the program.

Finally, it is worth noting that while Congress has delegated the ability to raise the EB-5 investment amount to DHS (through consultation with other agencies were required), its ability to do so is tempered somewhat. The Supreme Court’s Chevron test requires that regulations be “permissible construction(s)” of the statute. Could USCIS legally raise the minimum investment amount to $10,000,000 overnight, or change the TEA minimum investment so that it is only $1.00 less than the base amount? Potentially, but such actions would likely draw a federal court challenge to the limits of USCIS authority on the matter given the underlying legislative intent of the EB-5 program.

Article By Matthew T. Galati of Greenberg Traurig, LLP

Failure to Investigate Could Mean “Game-Set-and-Match” for EB-5 Investors: SEC Case against Brother-in-Law of Tennis Star Andre Aggasi Shows Risk for Would-be Immigrant Investors

On August 25, 2015, the U.S. Securities and Exchange Commission (SEC) filed a civil fraud suit against Lobsang Dargey, a Bellevue, Washington-based real estate developer and alleged fraudster, who also happens to be a brother-in-law of tennis star Andre Agassi. Dargey had ventured into the EB-5 Program as a developer and regional center owner, securing designation by United States Citizenship and Immigration Services (USCIS) for two regional centers, Path America SnoCo and Path America KingCo. The complaint is relevant to both investors and regional centers in the EB-5 industry, as well as to lawyers advising issuers in EB-5 offerings.

Dargey has now landed in hot water for engaging in fraud and deceit in the EB-5 offering process, as well as for using related Path America companies to siphon investor funds into his own pockets. The SEC has charged him for making false and misleading statements in EB-5 offering documents, alleging that since 2012 Dargey has exploited the EB-5 Program to defraud investors seeking investment returns and a lawful path to U.S. permanent residency. Among the allegations is misappropriation of $17.6 million in investor funds.

Summary of the SEC’s Complaint

The SEC alleges that Dargey, through his solely owned and controlled entity Path America, LLC, had diverted to himself and for his own personal benefit millions of dollars he had raised from Chinese nationals for EB-5 projects sponsored by Path America-owned regional centers. Path America had raised money for projects including the proposed Potala Farmers Market (a hotel, apartment and retail project in Everett, Washington), as well as the Potala Tower (a proposed 440 foot, 40-story hotel-and-apartment tower) in Seattle. Path America serves as the managing member of both USCIS designated regional centers and had unfettered control over the entire EB-5 investment process for the offerings.

In bringing the suit, the SEC also obtained a temporary asset freeze against Dargey and numerous related corporate defendants to prevent Dargey from pursuing his recently-announced plans to raise an additional $95 million from investors. According to the SEC, Dargey spent some of the siphoned funds on a $2.5 million home in Bellevue as well as at various gambling casinos. He also diverted EB-5 funds to projects that were unrelated to those disclosed in his offering documents to investors, meaning that the green card petitions pursued by EB-5 investors would be infirm.

A Path to America Fraught with Securities Fraud

The Path America case raises questions about investments buttressed by stories that seem to-good-to-be-true: Dargey left his Tibetan homeland and goat-herding profession in 1997 to pursue opportunities in the United States, as a house painter though he didn’t speak a word of English, and later rose to become a successful real estate developer. Dargey’s personal biography was almost certainly a lure to investors, and he conditioned the EB-5 market with his life story. In the media, Dargey touted his personal journey from Buddhism to capitalism, creating a background narrative for his real estate ventures and perceived success. Dargey’s story should caution investors to thoroughly examine the organizations backing the EB-5 projects in which they invest despite any personal affinity or connectivity with the background of a project promoter. Although the SEC has not directly asserted that this case involved affinity fraud, it is clear that Dargey targeted Chinese investors who may have felt an affinity with him. This is a common tactic employed by a schemer in affinity fraud.

If true, the allegations levied by the SEC make a strong case against Dargey for securities fraud, which is at the heart of the complaint. An element of any claim of securities fraud is the defendant’s state of mind, specifically, whether the defendant acted with “scienter” or “fraudulent intent.” Frequently, aggrieved investors in actions to recover their investment losses have tried to establish scienter by pointing to a defendant’s “motive and opportunity” to commit fraud. The Dargey case illustrates how control of numerous related entities involved in this EB-5 financing program may give a defendant ample “opportunity” to siphon off investor funds and commit fraud, while keeping investors in the dark about material changes to how he used investor funds. Nine different corporate entities were named as defendants in this case, and, according to the SEC’s Complaint, Dargey maintained control over all of them to such a degree that he was able to repeatedly transfer funds between the entities and into accounts that he controlled, eventually withdrawing large sums of cash which he used to gamble and purchase real estate. A quick records search on the State of Washington’s Secretary of State’s corporate records database reveals that Dargey (or a member of his executive team listed on his company website) is in fact the registered agent for each of these companies.

The Dargey case serves as a reminder to investors in EB-5 regional center projects (or any other investment vehicle) to be thorough and circumspect in evaluating the organizational structure of any enterprises set up to achieve the advertised goals, particularly where numerous inter-related projects are involved and particularly where the entire enterprise appears to be under the control of just one individual. Unlike Mr. Dargey’s rags-to-riches success story, some opportunities are just too good to be true.

Related Party Transactions Can Be Traps for Unwary EB-5 Regional Centers and Issuers

Regional centers and issuers of EB-5 investments should also consider carefully the lessons in Dargey’s case about potential SEC scrutiny of related party transactions.

USCIS designated regional centers that handle investor funds and that facilitate offerings also need to be cautious, even when they think they are doing everything properly. The SEC is showing an increased interest in the EB-5 Program, and this interest appears to be here to stay.

One hot topic is related party transactions that, when improperly concealed, keep investors in the dark about the economic relationships among multiple related entities in a deal. Disclosures about related party transactions should not be buried in a Private Placement Memo (PPM), but should be identifiable and written in clear language. If a regional center, developer and general partner are essentially one and the same party in your deal, your offering could be subject to a higher level of scrutiny later particularly with respect to whether all material disclosures were properly presented in offering documents. Related party transactions require careful and robust disclosures so that investors can evaluate the substance of potential conflicts. Such disclosures belong to the total mix of information that a reasonable investor would need to know in order to make an investment decision. The omission of such disclosures can lead to litigation later with the SEC and investors.

While transparency to investors is paramount, so too is fairness. If you are conducting an offering with related party transactions, ensure that you have a commercially reasonable basis for the economics of your deal. Also have objective controls on how investor funds are managed and spent. One practice tip is to engage an auditor that provides annual or even semi-annual or quarterly reports to investors. Even regional center owners or managers who don’t engage in criminal or egregious conduct can find the SEC knocking at the door and alleging fraud when material facts in a deal are not disclosed to investors, or when there are questions about how investor funds were handled.

Another strategic tip: hire qualified securities counsel to understand what you need to disclose in your offering documents when you have a related party transaction. What constitutes a material disclosure is complex. Suffice it to say that counsel needs to be engaged in all aspects of an offering’s preparation to guide an issuer on whether disclosures are sufficient when a deal goes to market. An omission could result in allegations or findings later that offering documents contained false or misleading statements. An omission of a material fact about related party transactions can have dire consequences including rescission in favor of investors, an SEC finding of securities fraud under Section 10(b) of the 1933 Securities Act and exposure under Rule 10b-5, one of the most important rules promulgated by the SEC with respect to securities fraud. Allegations by the SEC that an issuer or regional center has made false and misleading statements in an offering process can lead to assets being frozen and costly civil fraud litigation, particularly where the SEC can show opportunity to commit fraud through related party dealings.

How Can Regional Centers and Issuers of EB-5 Securities Mitigate Litigation Risks?

Every EB-5 regional center or issuer should consider adding a securities litigator to the offering team before introducing a deal into the marketplace. In the current climate, guidance on risk mitigation in an offering is critical. Having counsel involved early on during drafting sessions of an offering is an effective way to understand your disclosure obligations as you prepare a PPM. A securities litigator following the lifecycle of your offering – from inception of a business plan to closing of a deal – can serve as an excellent advisor to issuers in preventing problems and miscommunications with investors and government agencies. In the current climate, risk mitigation is an important component of EB-5 regional center business planning and operations.

Conclusion

The SEC is the ultimate referee in an EB-5 deal. Playing ball by the rules matters, especially when it comes to ensuring that material facts are disclosed to investors. Disclosures are the “sweetspot” of a PPM. A PPM without the right disclosures is about as effective as tennis racquet with no sweetspot. You’ve lost the match before the first serve.

If SEC litigation increases in the EB-5 realm, then we expect that otherwise lawabiding and compliant regional centers could be inadvertently swept up into costly litigation. This will be true even with regional centers who make a good faith effort to comply with the law. An SEC complaint against your regional center could seriously impede your ability to do business, even if you have the law and facts in your court. Therefore, now’s the time to add securities litigation counsel to your EB-5 team, if you haven’t done so already. Securities litigation counsel experienced in the purchase and sale of securities, the Foreign Corrupt Practices Act (FCPA), disputes with the SEC over what constitutes materiality in an offering, and other relevant areas can help you mitigate risk, protect investors and raise funds as you intended.

Article By Adam L. Sisitsky & Douglas Hauer of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Sunlight is the best disinfectant: SEC charges oil company for fraud on EB-5 investors

In a recent action, SEC v. Luca International Group, LLC et al. (“SEC v. Luca“), the Securities and Exchange Commission (SEC) has charged a California-based oil and gas company and its CEO with violations of securities laws in connection with a $68 million Ponzi scheme and affinity fraud. The target of the fraud was the Chinese American community. Additionally, a portion of the funds raised by the defendants came from EB-5 investors seeking green cards through the EB-5 Program. The SEC issued both a press release and cease and desist order this week in connection with this most recent action. We think that this case highlights two important and relevant points for our readership, and that the SEC exposing the defendant schemers/fraudsters in SEC v. Luca is good for the EB-5 industry and integrity of the EB-5 program.

Prosecution efforts are going global– government agencies in Hong Kong and China assisted the SEC’s efforts

Now more than ever before, the SEC is on the path to closing down actors in the EB-5 context that engage in deception and fraud. We are in a new era of enforcement, with the SEC becoming more familiar with the EB-5 Program. We think that this enforcement trend will move at an even faster clip as the SEC and United States Citizenship and Immigration Services (USCIS) become more agile in cooperating and responding to credible allegations of fraud.

EB-5 regional centers and issuers need to put into place sound and workable policies to ensure that marketing practices are in line with securities laws. Note that in SEC v. Luca, there was cooperation with the SEC and two foreign agencies, namely the Hong Kong Securities and Futures Commission and the China Securities and Regulatory Commission. Enforcement and prosecution efforts in this context are going global. Regional centers and issuers should ensure that any offshore sales efforts are in compliance with the laws of the countries in which sales activities are performed.

Overlooked federal and state investment adviser registration requirements

SEC v. Luca is a reminder that investment adviser requirements may apply broadly in EB-5 transactions and require federal or state registration by regional centers, issuers and/or EB-5 deal facilitators. In SEC v. Luca, the SEC asserted that the defendants acted as “investment advisers” within the meaning of Section 202(a)(11) of the U.S. Investment Advisers Act of 1940 (“Advisors Act”) [15 U.S.C. Section 80(b)-2(a)(11), but had no registrations with the Commission. Confusion over investment adviser registration requirements is a commonplace problem in the EB-5 space. In SEC v. Luca, the defendants were in the business of providing investment advice concerning securities for compensation. According to the SEC, these key facts triggered registration requirements under the Advisers Act.

We will soon be providing an extensive alert with regulatory advice to EB-5 regional centers and issuers on the applicability of both federal and state investment adviser registration requirements. The applicability of such requirements should be made on a case-by-case with qualified securities counsel. There is no “one size fits all” advice. States have their own considerations in interpreting investment adviser registration requirements. And the SEC has its own interpretive guidance on the parameters of the registration requirements of the Advisers Act apply.

Conclusion

The egregious pattern of unlawful behavior by the defendants in SEC v. Luca included deceit in the marketing process, fraud in offering materials, comingling and misappropriation of funds, and violation of registration requirements. These are issues not just in the EB-5 context, but with private placements generally. Affinity fraud is also common in private placements.

EB-5 stakeholders should be aware that we are seeing a visible uptick in securities related prosecutions. No issuer, regional center or deal facilitator is immune from scrutiny. The SEC and USCIS are also working together more nimbly with foreign securities agencies. Sound policies, securities compliance and meaningful due diligence by experts are important in EB-5 offerings.

Sunlight is the best disinfectant. This adage is true for the EB-5 program. Stakeholders who promote a transparent and strong EB-5 program should applaud the SEC’s efforts.

ARTICLE BY Douglas Hauer of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

EB-5 Program Reauthorization: Proposed Legislative Reforms

Background

Created by the Immigration Act of 1990, the Immigrant Investor Program, more commonly referred to as the EB-5 program, offers foreign investors an opportunity to secure permanent res The July 2015 Visa Bulletin Brings Little Change idency in the United States by making a minimum capital investment of $1 million per investor into a New Commercial Enterprise (NCE) that will create at least 10 jobs for US workers. Under the law now, the $1 million investment amount is adjusted downward to $500,000 for an NCE that creates jobs in a Targeted Employment Area (TEA), which is defined as a rural area, or as an area that has an unemployment rate that is at least 150 percent of the national average.

In 1992, in an effort to spur interest in the program, Congress followed up by creating a pilot program that allowed for the establishment of EB-5 Regional Centers, which are private for-profit or government-affiliated entities that receive special designation from U.S. Citizenship and Immigration Services (USCIS) to administer EB-5 investments and oversee job creation. The Regional Center program allows indirect jobs to be counted toward the job creation requirements.

According to USCIS, as of June 1, 2015, the agency had approved more than 700 regional center applications.

More than 90 percent of EB-5 investments are made through Regional Centers, or projects affiliated with Regional Centers. The program has been a success, creating in Fiscal Year 2013 alone more than 41,000 jobs. The program has attracted the investment of more than $4.5 billion in qualified U.S. projects.

Current Reauthorization Legislation

In the current congress, legislation has been introduced in the House of Representatives to make the Regional Center program permanent, and in the Senate to extend the program for five years. Both measures would make reforms to the program, which has faced reports of fraud and abuse, processing delays for developers and investors, and concerns that the benefits of the program are not going toward rural and high-unemployment TEAs.

Congress has reauthorized the Regional Center program five times since its inception in 1993, most recently in 2012 when the program was extended through September 30, 2015. The legislation to extend the program was agreed to in the Senate by unanimous consent and in the House of Representatives in a vote of 412-3.

The same legislation also extended through September 30, 2015 the authorization for the E-Verify Program, the Special Immigrant Non-minister Religious Worker Program, and the Conrad State 30 J-1 Visa Waiver Program.

House of Representatives

In March, Representatives Jared Polis (D-CO) and Mark Amodei (R-NV) introduced H.R. 616, the American Entrepreneurship and Investment Act of 2015, which would make the Regional Center program permanent, while also making reforms and enhancements to the program. Specific reforms include:

Improving the definition of TEA designations, by codifying the designation authority, which is done at the discretion of the states, and by lengthening the validity period of TEA designations to two years
Increasing the program’s efficiency by requiring that the Secretary of Homeland Security establish a preapproval procedure that enables a Regional Center to seek preapproval of a business plan before seeking project investors
Establishing a new requirement that USCIS defer to its prior rulings except in the case of material change, fraud or legal deficiency
Enhancing Regional Center transparency and accountability with a requirement that investors comply with federal securities laws and other additional enforceable regulations and laws
Providing for an expedited 180-day adjudication process for I-924 or I-526 filings, which can take between 12 and 18 months for approval currently
Amending the age determinations for children of EB-5 investors and allowing for concurrent filings by of EB-5 petitions for permanent residence status by immediate family members of principal investors
Affirming the applicability of the Foreign Corrupt Practices Act (FCPA) to any EB-5 petition

Senate

In June, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and Ranking Member Patrick Leahy (D-VT) introduced S. 1501, the American Job Creation and Investment Promotion Reform Act of 2015. The bill would reauthorize the Regional Center program for five years, while overhauling it with oversight tools, security enhancements, and anti-fraud provisions to make the program more transparent. The bill would provide the Department of Homeland Security with the authority for expanded background checks and a more thorough vetting of proposed investments, and would also allow DHS to proactively investigate fraud, here in the United States and internationally, using a dedicated fund that would be paid for by certain participants in the program. Other reforms include:

Increasing the required minimum investment amount in a TEA from $500,000 to $800,000, and from $1 million to $1.2 million for non-TEA investments
Revising the definition of a TEA to include a rural area, closed military base, or area consisting of a single census track with a unemployment rate that is 150 percent of the national average, but with specific requirements related to the TEA’s location within or outside of a metropolitan statistical area
Specifying that indirect jobs can make up no more than 90 percent of all the jobs counted for the purpose of the Regional Center designation
Requiring that Regional Centers provide an annual certification that they are complying with program requirements and also that they are in compliance with state and U.S. securities laws
Making U.S. citizenship or permanent resident status a requirement for anyone directly or indirectly engaged with operating a Regional Center
Limiting the use of gifts and loans as the source of EB-5 investments
Allowing concurrent filing of an I-526 petition and I-485 adjustment of status application if a visa number is immediately available, and also specifying that if a parent’s I-829 petition is terminated their child will still be considered a child for EB-5 purposes provided that the child remains unmarried and the parent files a subsequent I-526 petition within one year after the termination of the original petition
Introducing new parameters for applying job creation statistics with respect to determining the amount of EB-5 capital that may flow into projects that are also financed by non-alien entrepreneurs and other sources of capital

Outlook

While anything is possible in Congress these days, insiders believe that the House and Senate should be able to work together in a bipartisan, bicameral way to reauthorize the EB-5 program.

Congressional staffers working on this issue anticipate that the House will likely pass a reauthorization on the suspension calendar; although the final bill may not be a permanent authorization as called for in H.R. 616, but could instead be a shorter five or seven year extension. It is possible that the House will not act on reauthorization until late September as the expiration date draws near.

Both Rep. Bob Goodlatte (R-VA), chairman of the Judiciary Committee, and Rep. Darrell Issa (R-CA), a senior member of the committee, are thought to be generally supportive of the Polis/Amodei legislation, but are expected to seek changes to the bill.

In the Senate, the outlook is murkier. As discussed above, Chairman Grassley and Ranking Member Leahy have introduced a five-year extension bill, but Senators Charles Schumer (D-NY), Jeff Flake (R-AZ), and John Cornyn (R-TX), all members of the Senate Judiciary Committee, are thought to favor a reauthorization that is closer to the House legislation.

With limited legislative days left before the program’s expiration on September 30^th – the House and Senate are in recess for the month of August and first week of September – the most likely, although not certain, outcome is that Congress will pass some version of the Polis/Amodei legislation (with a limited number of years’ extension, versus being made permanent). We could also see a short-term extension of the program to allow House and Senate policymakers to negotiate a compromise reauthorization bill.

ARTICLE BY Douglas Hauer, Alexander Hecht & R. Neal Martin of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Holiday Update on USCIS Processing Time for I-526, I-829, and I-924 Petitions

Earlier this month, USCIS released updated processing times for EB-5 related petitions. The following chart provides the average processing times for cases being adjudicated by the Immigrant Investor Program Office (IPO) as of October 31, 2014:

Form	Processing Timeframe as of December 11, 2014
I-526	14.7 months
I-829	8.6 months
I-924	9 months

Based on previously released processing time data issued in July 2014, the current processing time for all three petitions has unfortunately increased. During the December 5, 2014 EB-5 Public Engagement, Nicholas Colucci, Chief of the Immigrant Investor Program Office, explained the IPO’s operational plan for FY 2015 includes streamlining I-526 petition adjudications on a first-in first-out basis.

USCIS reminds I-526 applicants that tools are available for checking the status of a filing online at www.uscis.gov or through an email to USCIS.ImmigrantInvestorProgram@uscis.dhs.gov for cases which are pending beyond the above referenced processing times.

ARTICLE BY

Ali Brodie

Greenberg Traurig, LLP

Tag: eb-5 visa

New USCIS Policy Announced at March 3, 2017 Stakeholders Meeting: Regional Center Geography

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