Looming Issues For Regional Center EB-5 Program
by Young Noh
Starting several years ago, I-526 petitions for the Regional Center EB-5 cases have been on the sharp rise, and as a result, numerous I-829 applications to remove the conditional status have been already adjudicated, and even more I-829 applications will be filed in near future.  The adjudications of these I-829 cases have already revealed certain procedural problems regarding I-829 applications that need to be overcome; and further adjudications of I-829 applications will likely bring up various unresolved issues concerning job-creation, which need to be clarified for the Regional Center EB-5 Program to continue its growth and become a more transparent method of emigrating for alien investors. The purpose of this article is not to discuss long-term solutions or policy directions of EB-5 Program but to identify existing issues/problems that have already cropped up or are fast approaching, and to suggest some common sense solutions.
Currently, I-526 petitions for Regional Center cases are taking around three months or less to be adjudicated, so that's good news. Moreover, status of I-526 petitions can be tracked via USCIS online case status verification system. However, there is no USCIS system in place to allow applicants and/or attorneys to check the status of I-829 conditions removal applications. Other than the initial Receipt Notice (which frequently are not even sent out to attorney of record or applicant based on our past experience with I-829 applications) merely evidencing that I-829 application has been filed with USCIS, there is no way to check the status of pending I-829 application or even after I-829 has been adjudicated, other than calling the Customer Representative. Also, there appears to be a continuing problem with USCIS' generating or sending out Approval Notices. For many I-829 cases, neither Receipt Notice nor Approval Notice is sent out by USCIS. Not having Receipt Notice and/or Approval Notice obviously poses all sorts of problems for the applicant and his family members, who need to promptly remove their conditional permanent residence status and/or travel outside the United States while their I-829 application is pending, or who happen to be temporarily present outside the United States after the expiration of their conditional green cards. Because of the harsh consequences awaiting those alien entrepreneurs who fail to successfully remove the conditional status -- even after they made their requisite investments -- potential amendments should be considered.  With I-829 applications on the rise, the USCIS needs to establish an efficient processing system to allow applicant or attorney of record to not only easily verify status of pending I-829 applications but also to receive promptly Receipt Notice and Approval Notices. In addition, I-829 Receipt Notice should list the spouse and dependents to enable the spouse and dependents to prove that they were actually included in the I-829 conditions removal application and that they are currently in legal status. 
Applicants of I-526 and I-829 applications deserve more responsive service from USCIS, not only because they have invested substantial amount of money that help U.S. economy, but especially in light of a huge (and also horrendous) increase in filing fees for both I-526 and I-829 applications, set to become effective on July 30, 2007. 
While the four AAO precedent EB-5 cases  have addressed and settled certain issues involving Regional Center or Targeted Employment Area ("TEA") EB-5 cases, these AAO decisions have not adequately clarified a myriad of potential issues concerning the job-creation, which is the underlying goal of EB-5 Program. Aside from holding  that 1) the job-creating businesses should be located in the subject TEA area, 2) the entire requisite investment should be given to job-creating businesses, and 3) the jobs created should be "permanent" jobs, these AAO cases and the legacy USCIS have not addressed other job-creation issues that are looming ahead. The primary reason for any lack of guidance on the job-creation issues is because in the past, almost all of denied TEA and Regional Center I-526 petition cases were based on, the then commonly-used grounds to deny I-526 cases, such as lack of lawful source evidence, guarantee of investment amount by the new commercial enterprise to the individual investors, usage of promissory notes, not actually investing the entire amount and the use of reserve funds by the new commercial enterprise to pay back individual investors. Because a majority of EB-5 cases were denied at I-526 stage, based on various grounds other than job-creation issues, USCIS and/or AAO simply did not have enough opportunities to address job-creation issues at I-829 stage and formulate practical guidance on the same issues.
According to said writer's research, the following issues concerning jobs-creation appear to have been decided already.
In conclusion, because currently many Regional Center Programs have obtained numerous I-526 petition approvals, and many of the same cases are fast approaching the I-829 stage, certain I-829 related issues that have not been thoroughly examined in the past are bound to arise. USCIS' recognition of these issues and its issuance of practical and well-justified guidance on these issues will go a long way in helping the Regional Center Program achieve, in a more transparent manner, its intended goal -- which is to create jobs (direct, indirect and induced) within the designated Region, within the clearly-defined parameters of each Regional Center EB-5 Program. Only when the politicians and the public can see that the EB-5 Program actually creates jobs, there will be a push (or acceptance) to make the EB-5 Program permanent.
1 This resurrection of once almost dead Regional Center is largely due to the 2002 change in the requirements of Regional Center and the tireless efforts of Mr. Morrie Berez, the head of EB-5 Unit.
2 Said author believes that an amendment allowing investors who already invested and maintained requisite capital for two years and created necessary jobs within the same two years, and otherwise fulfill all EB-5 requirements, should be allowed to apply and obtain "permanent" green cards, without having to first go through conditional status. For example, aliens who have been married to U.S. citizens for two years or more can obtain "permanent" green cards without going through the conditional residence stage. As an alternative, said author believes that the requirement for the creation of ten jobs is not realistic, especially for regular, direct investment EB-5 cases; and the job numbers for regular EB-5 cases should be reduced to four or five full-time positions, excluding the applicant and his immediate family members, to encourage more direct investment EB-5 applications.
3 In fact, I-526 form should be amended to include spouse and dependents who will be adjusting or applying for immigrant visas.
4 Even Donald Trump might be shocked to find out filing fees for I-526 will cost $1,435 and approximately $3,000 for I-829.
5 Matter of Soffici, 22 I. & N. Dec. 158, 19 Immigr. Rep. B2-25 (Assoc. Comm'r, Examinations 1998); Matter of Izummi, 22 I. & N. Dec. 169, 19 Immigr. Rep. B2-32 (Assoc. Comm'r, Examinations 1998); Matter of Hsiung, 22 I. & N. Dec. 201, 19 Immigr. Rep. B2-106 (Assoc. Comm'r, Examinations 1998); Matter of Ho, 22 I. & N. Dec. 206, 19 Immigr. Rep. B2-99 (Assoc. Comm'r, Examinations 1998).
6 See Matter of Izummi.
7 Said writer does not claim to have done an exhaustive research by reading all of non-precedent EB-5 cases, but he has read applicable regulations, precedent case law and some of non-precedent cases. In addition, said author attended the recent AILA Conference at Orlando, Florida and attended all EB-5 seminars and meetings sponsored by both ILW.COM and AILA.
8 8 CFR 204.6(j)(6) requires that the employment be created "in a targeted employment area".
9 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, 116 Stat. 1758 (2002).
10 BEA professional staff confirmed in writing on April 24, 2007 that "the RIMS II direct-effect employment multiplier can be used along with an estimate of a change in direct employment to calculate the total employment impact of a project or event on a region. The total employment impact includes the direct + indirect + induced employment impacts when using Type II (Endogenous) multipliers. The estimated direct, indirect, and induced employment impacts all occur within the region. The RIMS II multipliers cannot estimate the impacts that occur outside the region."
11 It appears that most Regional Centers use RIMS II, REMI, or IMPLAN economic analysis.
Young H. Noh is an expat U.S. attorney working and residing in Korea. He is co-author of the Chapter on American Embassy in Seoul in Visa Processing Guide published annually by AILA. Young Noh represents Korean individual and corporate clients with their immigration and visa cases, including EB-5 and E-2 cases; and also works with Korean-licensed attorneys to represent non-Korean clients with business and litigation cases involving Korean law. Mr. Noh can be reached at: firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.