Quarterly Eb-5 Engagement Meeting October 16, 2012

Yesterday, USCIS held a quarterly EB-5 engagement meeting to provide stakeholders with updates on its current internal developments. Based on the menagerie of Who’s Who of EB-5 immigration attorneys in attendance, it was evident practitioners were hoping for more details. Still, USCIS was able to provide some updates with regards to operations and issues involving processing delays. Practitioners should stay tuned next month when USCIS Director Alejandro Mayorkas will provide more details during an upcoming engagement meeting.

EB-5 Operational Updates

Internally, there’s been many changes with the EB-5 division at USCIS. Since our last blog back in July about the stagnation of EB-5 adjudications, USCIS has hired a Section Chief to oversee the EB-5 program. Indeed the EB-5 program, which in FY2012 has received more than double what it received in FY2011, is experiencing a dramatic increase in the consumption of USCIS resources (which probably explains the frustrating backlog experienced by petitioners). Compounded by the complexity of each case and the need for individual cases to be especially reviewed, it’s no wonder USCIS opted to expand its EB-5 division:

  • 2 upgraded supervisory officers reviewing the I-924 workload
  • 16 adjudicating officers dedicated to the EB-5 workload
  • 2 full-time employees dedicated to the EB-5 public mailboxes
  • Increased professional support staff at the California Service Center
  • Full time contract economists
  • Attorneys with corporate and securities background dedicated to the EB-5 program

From the operational standpoint, the teams will be further specialized to handle stand-alone I-529 filings and to develop strategies for various types of commercial enterprises. A dedicated intake team, while conceptual at this point in time, will, in the future, manage I-924 filings and be comprised of eight officers and economists to review the regional center’s filings. A dedicated review board will also oversee all NOID and RFE issuances.

Eb-5 Processing Backlogs

Processing times have suffered as a result of the surge in caseloads over the years. Although USCIS is stepping up its resources to match the current caseload, USCIS announced that improving its processing times and reducing its backlog is a top priority. The highest priority is to enhance processing times for regional center applications. Cases are generally reviewed on a first-in-first-out (FIFO) basis, except when they’re not. Requests for Evidence (RFEs) also make up a large reason for the backlog. In this regard, USCIS addressed the relatively unknown fact, to the dismay of attorneys that it has placed operational short-term holds on certain petitions until it was ready to adjudicate an entire group of cases with similar investment make up. In fact, USCIS was quite matter of fact about the process where it will shift an entire team’s focus from I-526 petitions to I-924 petitions if the case warranted it. Delays, mostly attributed to RFEs, are frustrating. In instances where seriatim RFEs have been issued, USCIS explained that that is a result of new evidence being presented in the response to the first RFE, thus necessitating a de novo review which may result in a subsequent RFE. To prevent the issuance of RFEs, USCIS provided some recommendations:

  • Include as much detail as possible, especially with respect to NAICS codes
  • When detailing construction costs, ensure that soft costs (i.e.: architectural designs and accounting) are separated out from the hard costs
  • For new commercial enterprises or job-creating entities, indicate evidence of the number of full-time employees maintained rather than the job duties of the positions kept

Integrity of the EB-5 Program

As some may have read in recent news alerts, USCIS will be examining cases for compliance with Securities and Exchange Commission laws. The solicitation of funds or pooling centers may trigger certain obligations under the SEC laws. Individuals who are engaged in creating investment companies or offering investment advice may very well be required to register with state or federal agencies as brokers or dealers of securities, or take further actions in order to satisfy SEC obligations. At this time, USCIS declined to provide further details on what factors may trigger an SEC compliance review or referral to the SEC but petitioners (and by default their attorneys) should be on alert. USCIS will continue to review caseloads and work with the SEC regularly to refer cases when necessary.

* * *

Next month, USCIS will address concerns about tenant-occupancy methodologies as well as progress on how backlog may have been reduced. Sign up for our blog to get regular updates on what’s happening with immigration and to get practice pointers for free.