Teleconference on EB-5 Investor Visas: Opportunities and Challenges September 26, 2008
The following are comments and questions from the teleconference and the
answers from USCIS.
Comments
Adjudications Attitude – A caller commented that EB-5
Request for Evidence and Denial Notices informally communicate a "gotcha"
message and, otherwise, that it seems that the agency wants to deny these cases.
Another caller suggested that USCIS has lost sight of the fact that EB-5
investors are investing millions of dollars into the U.S. economy. A caller
wondered why USCIS does not give investor cases the "benefit of the doubt" in
the absence of evidence which raises a question of fraud.
Questions
- Possible Sunset of Regional Center Program -- One caller
asked whether the September 30, 2008 sunset date applied to the entire EB-5
visa category, or only to the Regional Center Pilot. Another call asked how
USCIS would act on pending Regional Center cases if the program were not
extended.
- Ombudsman Response -- The sunset provisions were
applicable only to the Regional Center Pilot program. The Ombudsman
understands that USCIS planned to continue work on Regional Center cases
through September 30, 2008. Thereafter, if the Regional Center Program was
not yet acted on, USCIS would hold pending cases in abeyance until Congress
acts, or until after January 1, 2009. Congress did reauthorize the Regional
Center pilot on an interim basis through March 6, 2009.
- Premium Processing -- Another caller pointed out that
I-526 Alien Entrepreneur Petitions are taking in excess of seven months to
process, and suggested that USCIS consider instituting premium processing for
this product.
- Currently Active Designated Regional Centers – A caller
inquired about the number of approved USCIS "designated" Regional Centers.
- Ombudsman Response – Over time, 28 Regional Centers
have been designated.
- Minimum Threshold Investment Amount -- One caller asked
whether eligibility for the $500,000 threshold investment amount is
automatically provided for by designation as a Regional Center, or if it is
connected to another factor.
- Ombudsman Response -- The reduced $500,000 investment
threshold is provided by law to regional centers which are established
within a "targeted employment area" – in a rural or specific urban area that
qualifies as a "high unemployment" area. Obtaining Regional Center
"designation" does not automatically qualify a specific investment project
for the reduced $500,000 investment amount.
- Targeted High Unemployment Area -- A caller requested
that USCIS provide guidance on what type of data can be relied on to prove
unemployment rates, and where can such data be obtained? Also, how current
must the data be? Does it need to be accurate at time of adjudication, or at
time of filing, or both? The caller noted that unemployment data tends to
change.
- Ombudsman Response – USCIS has advised that it will
look to each state governor's office, or its designee, for such data.
- Special Public Law Legislation Cases -- Another caller's
question about a specific case referenced how USCIS is considering I-829
(Petition by Entrepreneur to Remove Conditions) cases that remain
unadjudicated for several years due to delays in issuance of implementing
regulations.
- Ombudsman Response – We understand from USCIS that
proposed rules are currently with the USCIS legal counsel for final review.
- Regular Stakeholder Meetings -- Several callers raised or
agreed with comments that USCIS should hold more EB-5 stakeholder meetings
around the country, with an annual meeting in Washington or at the California
Service Center.
- Ombudsman Response – USCIS Acting Deputy Director (now
Acting Director) Michael Aytes and EB-5 policy and adjudication officials
were at an EB-5 stakeholders' conference in Washington, DC, on September 23,
2008. The Ombudsman understands that USCIS plans to increase its outreach to
EB-5 stakeholders during the next year.
- Job Creation – A caller asked how and when USCIS
determines whether the necessary job creation element is met.
- Ombudsman Response – Job creation is demonstrated at
the I-829 stage of the immigration process. If direct jobs were predicted in
the business plan at the I-526 stage, then probative evidence must be
submitted, i.e., W-2s and/or I-9s. If indirect jobs were predicted, then
evidence of expenditure is usually provided as was predicted in the job
creation forecast.
- Overlapping Regional Centers – A caller asked whether the
EB-5 pilot program permits overlapping regional centers.
- USICS Response – Yes, the EB-5 Pilot Program does
permit overlapping Regional Centers.
- Number of Adjudicators – Another caller asked how many
EB-5 adjudicators there will be at the California Service Center.
- Ombudsman Response – The Ombudsman understands that
USCIS has trained ten adjudicators for the EB-5 product line, and that they
are committed to sufficiently staff this line to meet work demand.
Towards the end of the teleconference, the USCIS Deputy Service
Center Operations Director shared the following information:
- USCIS is committed to conducting quarterly EB-5 stakeholder meetings.
- Ten adjudicators will be assigned for California Service Center EB-5
processing, as volume demands.
- USCIS will look into the recent complaint of I-829 receipt notice delays
or non-issuance.
- One caller asked how to obtain a determination that an area qualifies as a
"targeted unemployment area" enabling an EB-5 investor to qualify based on the
reduced $500,000 threshold. USCIS indicated that the investor should contact
the governor's office, which routinely works with the designated state agency
designated by the governor for that purpose.
- Finally, USCIS will address non-case specific EB-5 questions at its
dedicated email address: USCIS.ImmigrantInvestorProgram@dhs.gov
This page was last reviewed/modified on January 20, 2009.
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