Last week, USCIS Director Alejandro Mayorkas announced the creation of a “new office to oversee all administration of the EB-5 Immigrant Investor program.” In the announcement, Director Mayorkas praised the accomplishments of the EB-5 program since its inception in 1990.
In the last 4 years though, processing of EB-5 applications have increased exponentially, leaving USCIS to grapple with how to manage the adjudicatory process. In the last four years, the EB-5 program has evolved in many ways, attracting domestic project developers seeking capital and plenty of foreign investors seeking opportunities to invest. USCIS approved more than 3,100 Form I-526 petitions in FY2012, more than three times that of 2009. It has dedicated four times more resources in FY2012 to the EB-5 program than in 2009. Its staff includes eight expert economists, with another two full-time attorneys, two supervising ISOs, another economist as well as a newly appointed position of “Chief of Immigrant Investor Programs.” USCIS is also providing applicants to speak to the office before a denial.
While USCIS seems to be addressing the increase in applications by adding personnel, this strategy may not necessarily produce the intended effect of improving the adjudicatory process for stakeholders. Immigration practitioners who assist EB-5 investors are cautiously optimistic.
Adjunct Professor Ed Beshara, of the University of Florida, Levin College of Law and Attorney and Managing Partner of Beshara P.A., in Orlando, Florida, informs, “Having extra staff may not always be the answer to the issues the EB-5 regional center principles, EB-5 project principles, and foreign national investors are currently facing.” Mr. Beshara explains that the challenge is the way in which adjudications are administered by the frontline adjudicating officers, not necessarily the amount of human resources dedicated to the EB-5 Unit. “The adjudication process is based upon rules and policy directives that are not always realistic, from a business person standpoint. Adjudicators individually have a right to use their own discretion in the decision-making.”
Unbridled discretion, can be (and often times is) administered in a way that completely ignores “decisions made during stakeholders meetings with the EB-5 Unit or Director Mayorkas.”
On the West Coast, one of America’s leading immigration attorneys, Martin J. Lawler, of Lawler & Lawler in San Francisco, California, expresses the same concerns regarding the way in which EB-5 adjudications take place.
Currently the EB-5 adjudications process does not allow for direct contact with adjudicating officers. “It’s very frustrating to have $100 million projects and not have any ability to actually speak with the people in charge of the program.” Mr. Lawler points out, “Developers can go down to talk to the building department about his issues. A regional center can talk to the Securities Exchange Commission, but so far we really can’t talk to the USCIS about the important issues.” An even bigger concern is what appears to be the increase of RFEs for EB-5 cases. Mr. Lawler describes, “In February, everyone was surprised by USCIS’ 180˚ turn on tenant job creation. Without any discussion with Stakeholders hundreds of RFEs were issued on this issue.”
Adjudicative policy via RFEs instead of through traditional APA methods makes an immigration practitioner’s job that much harder to counsel stakeholders (developers, financiers and investors) on the EB-5 requirements.” (This trend is certainly not unique to EB-5 practitioners). As a collateral effect, it also slows down job-creation. Yet, Mr. Lawler is hopeful that this shift in USCIS’ stance on the EB-5 unit will “let the stakeholders and immigration lawyers know what the lay of the land” will be for future cases. Professor Beshara agrees. He says, “Unless there is clear and transparent understanding of the rules, regulations and policies, the new personnel and adjudicators cannot make equitable, consistent, and prompt decisions.” Now, those are pretty powerful opinions! What are your thoughts on the efficacy of this new EB-5 Office? Share your comments with us and subscribe to this blog.