USCIS Adjusts EB-5 Visa Petition Adjudication Process

Wednesday, January 29, 2020

U.S. Citizenship and Immigration Service officially announced today a process change for Form I-526, Immigration Petition by Alien Investor, from a first-in, first out basis to a visa availability approach.

According to USCIS, this new approach parallels with other visa-availability agency adjudications processes, is more consistent with congressional intent for the EB-5 Immigrant Investor Program, and increases fairness in the administration of the program. USCIS Deputy Director Mark Koumans said, “This new approach increases fairness, allowing qualified EB-5 petitioners from traditionally underrepresented countries to have their petitions approved in a more timely fashion to receive consideration for a visa.”

This operational change is consistent with the agency’s processing of Form I-130, Petition for Alien Relative, in cap-subject categories. The new approach simply gives priority to petitions where visas are immediately available, or soon available, and will not create legally binding rights or change substantive requirements. Applicants from countries where visas are immediately available will now be better able to use their annual per-country allocation of EB-5 visas. The new visa availability approach will apply to petitions pending as of the effective date of the change. USCIS will implement the visa availability approach on March 31, 2020.
USCIS will hold a public engagement on March 13, 2020, from 11:00 a.m. to noon eastern time, to provide information and answer questions from the public about these operational changes to the management of Form I-526 petition inventory. Applicants from China, Vietnam, and India with pending I-526 need to organize to inform IPO how you feel about this.

Reference:
U.S. Citizenship and Immigration Services. (2020). USCIS Adjusts Process for Managing EB-5 Visa Petition Inventory. Retrieved from https://www.uscis.gov/news/news-releases/uscis-adjusts-process-managing-eb-5-visa-petition-inventory

Regional Center Program Reauthorized until September 30, 2020

Friday, December 20, 2019

On December 19, Congress passed a FY2020 spending bill H.R. 1865, which funds the federal government and extends the EB-5 Regional Center Program through September 30, 2020. This bill has been sent to President Trump, which he is expected to sign.

This new extension provides a 9-month window for industry stakeholders and legislators to continue their work on achieving long-term reauthorization and complete program reform through legislation.

Senator Durbin and Leahy Introduced New Bill to Eliminate Immigration Visa Backlog

Tuesday, October 29, 2019

On Oct. 16, Senators Dick Durbin and Patrick Leahy introduced the Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act, which is an alternative to the Fairness for High Skilled Immigrants Act ( S. 386) proposed by Senator Mike Lee.

According to Senator Durbin, the new RELIEF Act would:
• Eliminate the current green card backlog over 5 years
• Eliminate the per-country caps for employment-cased green card
• Remove spouses and minor children from the employment-based pool of green cards to the family categories.

Both Fairness for High Skilled Immigrants Act and RELIEF Act would eliminate the per-country caps on employment-based immigration, when the Fairness for High Skilled Immigrants Act contains no change in the amount of total employment-based immigration amounts, the RELIEF Act would essentially increase the number of green cards issued each year and claiming to clear the existing backlog of employment-based green cards over five years. An intense debate occurred on the U.S. Senate floor. Each of these senators asked for Unanimous Consent (UC) to pass their respective bills, and each objected to the other. Under current deadlocked situation, we are waiting for some other attempts to address the issue.

EB-5 Regional Center Program Extension and New Bill to Reform

Monday, September 30, 2019

On Friday September 27, 2019, President Donald Trump signed short-term spending bill H.R. 4378, which is a continuing resolution bill that prevent another government shutdown and keeps the government funded until Nov. 21. The EB-5 Regional Center program as part of the bill has been authorized through November 21, 2019.

On Sep.24, 2019, Senator Chuck Grassley (R-IA) and Senator Patrick Leahy (D-VT) reappeared on the EB-5 scene and introduced their newer version of EB-5 Reform and Integrity Act to reauthorize the EB-5 Regional Center Program and aim to increase Department of Homeland Security (DHS) control over EB-5; with fees come from both regional centers and investors. It will increase the transparency from all involved in the program, and believed to decrease petition processing times.

Reference:
Grassley & Leahy introduce EB-5 Reform and Integrity Act to increase security, curb fraud, and extend program 5 years (2018, Sep. 27). Retrieved from https://greencardbyinvestment.com/grassley-leahy-introduce-eb-5-reform-and-integrity-act-to-increase-security-curb-fraud-and-extend-program-5-years/

Approaching Next Regional Center Program Sunset Date

Wednesday, August 28, 2019

The next EB-5 Regional Center Program sunset date is September 30, 2019. The industry experts widely believed that the EB-5 Regional Center Program will be included in the Congressional appropriations bills and will be passed without reform. However, it will come up again for reauthorization in few months, when the next omnibus bill is going to be voted.

With the implementation of the EB-5 Modernization Regulation (RIN 1615-AC07), it is possible that the Congress may actually spend time establishing reforms to the program. In reality, the EB-5 Program desperately needs changes to the visa cap and the per-country limit. Without these changes, the backlog may still grow. Currently, two additional rules are in early stage in the Rulemaking process. They are:
• RIN 1615-AC11, the Regional Center Program Regulation, which proposed changes to regional center designation and process.
• RIN 1615-AC26 EB-5 Immigrant Investor Program Realignment, which is going to solicit public opinion on proposals would increase monitoring and oversight, encourage investment in rural areas, redefine components of the job creation requirement, and define conditions for regional center designations and operations.

EB-5 Immigrant Investor Program Modernization Published in Federal Register

Thursday, July 25, 2019

The EB-5 Immigrant Investor Program Modernization Regulation (RIN 1615-AC07) is published on July 24, 2019 in the Federal Register. This final rule is in effective on November 21, 2019, 120 days from the date of publishing in Federal Register.

This final rule has increased standard minimum investment amounts from $1,000,000 to $1,800,000, and from $500,000 to $900,000 in a Targeted Employment Area (TEA). Meanwhile, TEA’s designation is subject to redefined rules, the TEA definition of a rural area remains unchanged. However, the specially designated high unemployment area may be designated by USCIS, not by the states as now. In addition, the final rule also provides priority date retention; clarifies USCIS procedures for the removal of conditions on permanent residence; as well as some miscellaneous changes.

This new rule is going to take effect in 120 days, unless there is litigation against USCIS regarding the regulation, or there is a new law overrule the regulation. To understand the rule in detail, please read entire document of the Regulation at https://www.govinfo.gov/content/pkg/FR-2019-07-24/pdf/2019-15000.pdf

Reference:
EB-5 Immigrant Investor Program Modernization, 84 Fed. Reg. 142 (July 24, 2019). Federal Register

India Received Own Final Action Date in July Visa Bulletin

Wednesday, June 26, 2019

The July 2019 Visa Bulletin is published by the U.S. Department of State – Bureau of Consular (DOS). India and Vietnam each would reach their EB-5 visa annual limit during July, which is consistent with information provided by Chief of the Visa Controls Office at the US Department of State, Charlie Oppenheim, at the IIUSA conference last month. The bulletin revealed total 3 countries now have final action dates under the EB-5 visa category, they are:
• China (mainland born) Oct. 1, 2014
• India: May 1, 2017
• Vietnam: Oct. 1, 2016

Also stated on DOS’s July bulletin, both Vietnam and India “will be subject to the same date as to China” for the remainder of the fiscal year. Moreover, IIUSA predicted that the action will only be temporary, with the new fiscal started in October, India would likely “advancing to the summer or fall of 2017’ and Vietnam would “likely advancing to the fall or early winter of 2016”, at the first month of fiscal 2020.

Reference:
U.S. Department of State – Bureau of Consular. (2019) Table: FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES. Retrieved from https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-july-2019.html

Invest In the USA (IIUSA). (2019). U.S. DOS Publishes July Visa Bulletin: India to be Subject to a Final Action Date for First Time. Retrieved from https://iiusa.org/blog/july-visa-bulletin-india-final-action-date/

EB-5 Visa Availability Updates and Prediction

Friday, May 24, 2019

On May 6, 2019, Chief of the Visa Controls Office at the US Department of State, Charlie Oppenheim, appeared at IIUSA EB-5 Advocacy Conference in Washington DC as keynote presenter. During his presentation, Mr. Oppenheim shared some of the firsthand data on EB-5 visa in FY219, also provided predictions on the EB-5 final action date movements. 【Here a link to Charlie Oppenheim’s presentation slides: https://iiusa.org/wp-content/uploads/2019/05/IIUSA-2019-EB5-Advocacy-Conference-Visa-Update-with-Charles-Oppenheim-1.pdf 】

Based on the current visa usage, Mr. Oppenheim confirmed that India will have its own final action date by June or early July of 2019. Furthermore, China will move to and remain on October 1, 2014, as well as Vietnam will move to and remain October 1, 2016; Brazil, South Korea and Taiwan will remain current for the remainder of FY2019.

Table 1.

Note: Reprinted from EB-5 Final Action Date Predictions from the U.S. Department of State, retrieved from https://iiusa.org/blog/eb-5-final-action-date-predictions-from-the-u-s-department-of-state/.

Reference:
Invest In the USA (IIUSA). (2019). EB-5 Final Action Date Predictions from the U.S. Department of State. Retrieved from

EB-5 Final Action Date Predictions from the U.S. Department of State

EB-5 Redeployment Policy

Friday, April 12, 2019

Under current policies of USCIS, every EB-5 Investor is required to retain his or her investment capital “at risk” in the NCE until that EB-5 Investor has been in the U.S. for 2 years in conditional resident status (the “Sustainment Period”). For EB-5 investors facing EB-5 quota backlog or for the purpose to satisfy the sustainment period, many required to retain their investment capital “at risk” for a period longer than a 5-year loan term. As long as your I-829 has not been approved, redeployment may be necessary.

IIUSA sent a memo to USCIS regarding redeployment recently regarding redeployment policy on April 8. In the memo, IIUSA expressed the industry’s concern of lacking redeployment guidance and specifying the enormous impact redeployment has on the EB-5 industry. The memo concluded by stating IIUSA’s wiliness to maintain open and constructive dialogue with USCIS seeking sustainable implementation of the Redeployment policy.

IIUSA stated in the memo,
• EB-5 law does not require at-risk redeployment in NCE
• If redeployment is necessary, redeployment in any NCE should be acceptable
• Redeployment should be allowed outside the regional centers’ area and the TEAs
• Need to clarify redeployment policies regarding material changes and withdrawals

IIUSA suggested that:
• Modify project documents to meet reinvestment requirements should not be considered as major changes
• Redeployment before obtaining a conditional green card should not be considered a material change; and
• Investors have the right to withdraw during redeployment. This should not be considered as violation of EB-5 law requirements.

Reference:
Invest In the USA (IIUSA). (2019). IIUSA Sends Memo to USCIS on Redeployment Policy. Retrieved from
https://iiusa.org/blog/iiusa-sends-memo-to-uscis-on-redeployment-policy/.

EB-5 Program Extension and Regulation Update

Monday,March 4, 2019

President Trump signed the Consolidated Appropriations Act, 2019 (federal funding bill) on February 15, thus avoiding another government shutdown. The spending bill funds the federal government and extends the EB-5 Regional Center Program authorization through September 30, 2019. EB-5 stakeholders are resuming efforts towards achieving EB-5 reform and long-term reauthorization.

Regulatory Actions Currently Under Review on the list of The Office of Management and Budget shows that the EB-5 Modernization Regulation advanced on Friday 2/22/2019 to the OMB Review stage.OMB Review is the last step in the rulemaking process before publication in the Federal Register.

Below is a summary of the EB-5 Immigrant Investor Program Modernization published in the Notice of Proposed Rulemaking for RIN: 1615-AC07, which was published in January 2017. DHS just spent two years making some kind of changes. Now the most stirring question for all is what will be in the Final Rule.

• Increase the standard minimum EB-5 investment amount to $1,800,000, or $1,350,000 in a TEA.
• A TEA is based on high unemployment and incentivized with 25% reduction to the investment amount (not other factors or incentives as proposed by Congress).
• A TEA can only be designated for a high-unemployment MSA, county, city, single census tract, or limited group of census tracts. DHS, not the states, is responsible for TEA designation.
• Give priority date protection (an investor with an approved I-526 could choose to file a new I-526 while keeping the original priority date, subject to certain restrictions)
• Spouse and children may be able to file I-829 even if not included on the principal investor’s petition.
• Other technical changes.