Headlines:
1. Congress Acts to Extend EB-5 Regional Center Program for Three Years – Congress has agreed in principle to extend the EB-5 regional center program for three years, until September 30, 2015.
2. USCIS Announces New EB-5 Program Office – USCIS announced the creation of a new office to oversee administration of the EB-5 immigrant investor visa program.3. USCIS Releases Third-Quarter Statistics on July EB-5 Stakeholders Call – Among other things, USCIS announced that a new version of the draft EB-5 policy memo will be issued soon.4. USCIS’s Summary of May EB-5 Stakeholders Meeting Provides More Info – After USCIS’s EB-5 stakeholders meeting held in May, attendees lamented that the agency provided little substantive information and did not answer many submitted questions. USCIS subsequently released a summary providing additional information.5. New Publications and Items of Interest – New Publications and Items of Interest6. Member News – Member News7. EB-5 Government Agency Links – EB-5 Government Agency Links
Details:
1. Congress Acts to Extend EB-5 Regional Center Program for Three Years
Congress has agreed in principle to extend the EB-5 regional center program for three years, until September 30, 2015. The Senate has already acted, passing the extension on August 2 by unanimous consent. The House of Representatives is in recess in August, but is expected to pass the extension soon after it reconvenes in September. This is good news for the regional center program, as it alleviates concerns that the program might expire on September 30.
The EB-5 extension is part of S. 3245, which also extends three other immigration programs for three years.
2. USCIS Announces New EB-5 Program Office
On July 18, 2012, U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas announced the creation of a new office to oversee administration of the EB-5 immigrant investor visa program. The office will be led by a new Chief of Immigrant Investor Programs. The position opening was announced the same day.
Director Mayorkas noted that the EB-5 program “has spurred the creation of tens of thousands of new jobs and the injection of billions of dollars into the U.S. economy since Congress created the program in 1990.” Interest in the EB-5 program has grown exponentially in recent years, he noted, both from domestic project developers seeking capital and foreign investors who have the capital that can fuel economic growth.
In fiscal year (FY) 2012 to date, USCIS approved more than 3,000 Form I-526 (Immigrant Petition by Alien Entrepreneur) petitions. Director Mayorkas said this was more than triple the number approved in all of FY 2009. “Since 2009, we have quadrupled the size of the EB-5 adjudications team and brought on board eight expert economists dedicated to the EB-5 program to ensure that EB-5 cases are handled expeditiously and with appropriate expertise.” In the next month, two full-time attorneys with substantial transactional experience will enter on duty as new additions to the USCIS EB-5 program team, he said.
Also, by the end of August, a Review Board consisting of two Supervisory Immigration Services Officers and one economist “will review every pending application for regional center designation for which a denial has been recommended, with applicants receiving the opportunity to discuss their cases in-person before any final adverse decision is rendered,” Director Mayorkas said.
3. USCIS Releases Third-Quarter Statistics on July EB-5 Stakeholders Call
U.S. Citizenship and Immigration Services (USCIS) held an EB-5 stakeholders call on July 26, 2012. USCIS announced the new EB-5 program office at the meeting, and noted that the agency will release a new version of the draft EB-5 policy memo soon. USCIS also plans to release related FAQs, and will incorporate stakeholders’ comments into both documents.
USCIS addressed many issues on the call, including what constitutes a material change in an EB-5 project. Decisions on what constitutes a material change and other issues are often very case- and fact-specific, USCIS noted. That is why general guidance sometimes cannot be provided. USCIS did not discuss the tenant-occupancy methodology issue on the call, noting that the agency plans to release separate guidance on that issue. In a summary of the May 1 stakeholders meeting, USCIS said it will communicate individually with applicants with tenant occupancy requests for evidence via mail and e-mail, and “will look into the lack of response from the regional center direct mailbox.”
USCIS said it has approved over 3,000 I-526 (Immigrant Petition by Alien Entrepreneur) petitions so far this year, and that the number of I-829 (Petition by Entrepreneur to Remove Conditions) filings has decreased. USCIS expects to see more filed in the fourth quarter.
Regarding industry category requests on the I-924 (Application for Regional Center), USCIS said the I-924 must show how jobs will be created, and that a detailed business plan is needed for each industry category.
USCIS noted that a project may use both EB-5 and domestic capital. If so, evidence is necessary to show how domestic financing will be obtained. USCIS said it understands that domestic financing may depend on EB-5 money going into the project first. The regulations do not require any specific evidence, but USCIS looks for loan agreements, letters of commitment, and any other evidence that it is realistic given the business realities of early-stage financing.
USCIS also noted that investors can receive a return on their investment during the two-year conditional resident period as long as the returns are derived from net earnings and do not decrease their capital contribution.
According to the latest EB-5 program statistics based on preliminary data for the third quarter of fiscal year (FY) 2012, USCIS received 4,156 I-526 (Immigrant Petition by Alien Entrepreneur) petitions and had approved 3,002 and denied 775 so far. This was a 79 percent approval rating, compared to an 81 percent approval rating for all of FY 2011 and an 89 percent approval rating for all of FY 2010. As of the third quarter of FY 2012, USCIS had received 546 I-829 (Petition by Entrepreneur to Remove Conditions) petitions and had approved 639 and denied 42 so far. This was a 94 percent approval rating, nearly matching a 96 percent approval rating for all of FY 2011 and exceeding an 83 percent approval rating for FY 2010.
USCIS approved 209 regional centers as of the third quarter. Full List of RCs by State.
The next USCIS stakeholder engagement meeting is scheduled for October 16, 2012, in Washington, DC. See HERE for additional details on the engagement meetings.
4. USCIS’s Summary of May EB-5 Stakeholders Meeting Provides More Info
After USCIS’s EB-5 stakeholders meeting held on May 1, 2012, attendees lamented that the agency provided little substantive information and did not answer many submitted questions. Over 250 people attended in person, and over 300 listened by phone. USCIS subsequently released a summary of the meeting that provided additional information, presumably based on written questions that were submitted to the agency.
Among other things, USCIS noted that the USCIS Immigrant Investor Mailbox is administered full-time by an EB-5 supervisor. Most inquiries are addressed within two to three days of receipt, USCIS said. Some may take longer if research and coordination are required. USCIS said it notifies inquirers if additional time is needed.
One inquirer noted that USCIS says it takes cases on a first-in, first-out basis, but also that it is considering grouping regional center cases to be adjudicated by teams. The question was whether, if a regional center submits an amendment to an I-924, it would be included with the group or would go into the first-in, first-out process. USCIS answered that immigration services officer (ISO) specialization by regional center efforts are geared toward I-526 and I-829 adjudications, not I-924 adjudications. However, I-924 applications are given to ISOs familiar with the regional center applicant, if possible. USCIS said it still adheres to a first-in, first-out process when adjudicating cases in the I-924 application workflow queue and in the individual petition queues. Under ISO specialization, USCIS noted, when the time comes for adjudication, the application can be sent to an ISO familiar with the regional center and the capital investment project. If cases are pending beyond posted processing times, USCIS suggests contacting the EB-5 mailbox at EB-5ImmigrantInvestor@dhs.gov.
With regard to I-526 petitions, an inquirer asked USCIS to confirm whether, after the formulas and multipliers in an economic analysis have been approved by the agency as part of a regional center’s initial application, those approved formulas and multipliers may be updated with more current data (for example, updated RIMS II [Regional Input-Output Modeling System] multipliers of the most current year versus multipliers of a few years back when the regional center was approved) at the time of the actual I-526 or I-829 filing, as long as the methodology used is otherwise the same as what was approved by USCIS. The agency said this is acceptable as long as the applicants are consistent and don’t “cherry-pick” across a range of years. It is not acceptable to selectively use the highest multipliers available for each approved industry since the date the approval was issued.
For example, USCIS noted:
[I]f the applicant was approved in 2008 to use appropriately specified 2006 RIMS II …final demand multipliers for the construction and operation of an assisted living facility, then the applicant must use 2006 RIMS II final demand multipliers for both construction and operation of the facility, or 2007 RIMS II final demand multipliers for both the construction and operation of the facility, or 2008 RIMS II final demand multipliers for both the construction and operation of the facility, and so on. The petitioner may not use a 2006 RIMS II final demand multiplier for construction and a 2009 RIMS II final demand multiplier for operations simply because the RIMS II final demand multipliers for those two industries in those two years happen to be the highest multipliers published since the approval of the I-924.
Regarding avoidance of requests for evidence (RFEs), one inquirer asked whether USCIS will provide filing hints to assist in lowering RFE and denial rates. USCIS said it “has discussed developing filing hints and is looking at ways to be more proactive” in communicating with stakeholders. “Submitting the most detailed and comprehensive evidence of investment and job creation possible is the primary way to avoid receiving an RFE,” USCIS said.
USCIS noted that although it does not require applicants to use attorneys or economists in filing for any immigration benefits, a regional center application has a “robust evidentiary requirement.” It is possible to provide a simplified model, USCIS said, but “[i]n every case, the applicant must show a reasonable economic methodology to prove direct or indirect job creation.”
USCIS also noted that case status availability online is tied to CLAIMS 3. I-924 and I-829 processing times do not reside in CLAIMS 3. USCIS plans to have a common platform for all applications, petitions, and case status online in “a few years.” If stakeholders seek case status information because the case is exceeding posted processing times, USCIS said they should use direct e-mail or the EB-5 mailbox.
An inquirer asked about bridge financing, noting that this issue did not appear to be covered with specificity in the last draft of the policy memo. USCIS noted that the new commercial enterprise, not the EB-5 investors, must create the requisite employment. As such, USCIS said, it is acceptable for the developer or principal of a new commercial enterprise, either directly or through a separate job-creating entity, to use interim, temporary or bridge financing in the form of either debt or equity before receipt of EB-5 capital. If the project starts based on the bridge financing before receipt of the EB-5 capital and subsequently replaces it with EB-5 capital, the new commercial enterprise still gets credit for the job creation, USCIS said.
USCIS said that the following policy will be issued in the forthcoming EB-5 policy memo under Section C, Creation of Jobs:
It is important to recognize that while the immigrant’s investment must result in the creation of jobs for qualifying employees, it is the new commercial enterprise that creates the jobs. This distinction is best illustrated by an example:
Ten immigrant investors seek to establish a hotel as their new commercial enterprise. The establishment of the new hotel requires capital to pay financing costs, purchasing the land, developing the plans, obtaining the licenses, building the structure, taking care of the grounds, staffing the hotel, and the many other types of expenses involved in the development and operation of a new hotel. The immigrant’s investments can go to pay part or all of any of these expenses.
Summary of the May Stakeholder Engagement Meeting.
5. New Publications and Items of Interest
Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, released on May 31, 2012, by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
This comprehensive guide is designed to be used by:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issue.
ORDER HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or Nicole.hahn@lexisnexis.com.
Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.
Green Card Stories has won five national awards. It was named a Nautilus book award silver medal winner, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012. Green Card Stories is also featured on National Public Radio’s photo blog.
For more information or to order, visit Green Card Stories.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available HERE.
6. Member News
Stephen Yale-Loehr was quoted in the Atlanta Journal-Constitution on July 26, 2012, in the article, “Investors Can Earn Shot at Green Card.” Mr. Yale-Loehr said the EB-5 investor program “creates jobs for U.S. workers at no expense to the taxpayer, so it will be renewed.” He founded the Association to Invest in the USA, which represents regional centers that organize EB-5 investment projects.
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7. EB-5 Government Agency Links
USCIS Web Page on EB-5 Immigrant InvestorsUSCIS Policy and Procedural Memoranda on EB-5 Investors
Immigrant Investor Regional Centers List
Form I-526, Immigrant Petition by Alien Entrepreneur
Form I-829, Petition by Entrepreneur to Remove Conditions
Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program
Form I-924A, Supplement to Form I-924
