Stakeholder Mutiny at Recent USCIS EB-5-ELIS Teleconference

Last year, USCIS announced the implementation of its Electronic Immigration System (ELIS).  The online filing program debuted last May allowing foreign nationals (and their attorneys or BIA accredited representatives) to file Form I-539 petitions online.  Given the form’s simplicity, the implementation was an attainable milestone on ELIS. Fast-forward 11 months: USCIS announced last week during a teleconference plans to expand the ELIS program to include Form I-526 petitions, commonly known as EB-5 petitions.  Dan Renaud, Acting Chief for the EB-5 Program Office in Washington, D.C. (and the Director of the USCIS Vermont Service Center) and Kathleen Stanley, Chief of the Office of Transformation Coordination for USCIS, both spoke about this goal during the teleconference. The current method for reviewing paper-based EB-5 petitions is cumbersome, time-consuming, and prone to other risks.  This is how the EB-5 sausage is made at USCIS:

  1. Petitioner files the EB-5 petition at the USCIS at lockbox facility in Texas.
  2. USCIS reviews the petition for acceptance.  If accepted, the petition is forwarded to California Service Center (CSC).  If not, it is returned to the petitioner.
  3. When CSC receives the EB-5 petition, it places the petition on a shelf until an adjudicator is ready to review it.  (This could take months….)
  4. When an adjudicator is ready to review the petition, it is removed, intact, from the shelf and placed on the adjudicator’s desk.  Any further requests for evidence will be (snail) mailed to the petitioner.

In the ELIS system, an EB-5 petition would allow the petitioner to fill out all information online and upload the supporting documentation.  Upon acceptance, the petitioner would be immediately notified and the petition will go into an electronic queue.  During adjudication, multiple USCIS personnel in the EB-5 Program Office can review and make annotations to the same file concurrently (including business analysts, the adjudicating officer, economists, etc.)  Requests for additional evidence can be sent to the petitioner electronically.  The petitioner can also upload their response electronically. The key benefits of incorporating the Form I-526 Petition into ELIS as part of the transformation process, explained Chief Stanley, were:

  • A reduction of reliance on paper;
  • A reduction in the need for physical storage space;
  • A reduction in the risk of losing or damaging physical files;
  • An improvement in security when sending information electronically;
  • Allowing all relevant parties to communicate on the same system;
  • Allowing more communication between adjudicating officers and customers, including RFE responses;
  • A simpler way to pay for the benefits; and,
  • Improved transparency in the status of a case.

In fact, going paperless is a great way to streamline efficiency, manage the caseload, and maybe even achieve faster processing times [though this was not actually promised].  Stakeholders weren’t convinced, at least not entirely.  Instead, they had many questions during the Q&A, paraphrased below: Q: It’s fine that USCIS would allow the Form I-526 to be completed online but how will ELIS support a petitioner’s ability to upload the numerous supporting documents?

Ideally, petitioners would also be able to upload all the supporting documentation based on the various categories defined by USICS Adjudicators.  [However, the mention of these “categories” raised even more concern by stakeholders….]

Q: How would USCIS allow multiple investors access to review and/or upload supporting documents?

USCIS agreed this was a good idea to allow multiple investors access to one common EB-5 filing and would consider incorporating this into ELIS.

Q: Would ELIS be able to support the capacity of the file sizes of supporting documentation?

USCIS is developing a system to handle the volume of documents uploaded.

Q: Would USCIS give deference to all subsequent investors on the same project?  Will USCIS need to re-adjudicate each investor petition on the same project?

USCIS did not have an opinion at this time until after it has had time to evaluate the new process.

Q: How does ELIS actually allow petitioners (or their attorneys) to input data and upload supporting documentation?  Does the system time-out after a long delay?  Can you save your petition to complete later or must everything be filled out all at once?

USCIS indicated the questions are answered one at a time in a wizard mode.  While the ability to upload the documents is a simple process, the petitioner must upload the documents within each category one at a time. [Wow, can you imagine uploading a large document one at time?  I hope USCIS considers batch uploading capabilities….]

Q: Has USCIS considered evaluating PACER to see what parallels it could draw from another federal electronic filing system?

USCIS indicated it would investigate this system.  [PACER- the Public Access to Court Electronic Record, is just one example of another federal agency, the federal court system, developing an electronic filing tool for the public to file cases online.  It appeared USCIS was not aware of this existing technology but hopefully it will collaborate with the developers of PACER’s e-filing software to help refine ELIS.]

Indeed, many attorneys indicated the EB-5 was one of the most complex USCIS petitions and that USCIS should seriously consider postponing the EB-5 rollout on ELIS until all aspects of the petition can be fully developed in ELIS. Fortunately, the paper filing process will still be available even after ELIS begins accepting the EB-5 petitions online.  For now, the tentative roll-out timelines for the full EB-5 Program is as follows:

  • Tentative: Form I-526 – Summer 2013
  • Tentative: Form I-924 – Spring 2014
  • Tentative: Form I-829 – Winter 2014

Do you have more questions about the EB-5 transformation?  Send them to USCIS at public.engagement@uscis.dhs.gov.  The public engagement reveals how USCIS is approaching the process of transformation in general.  It will be interesting to see how USCIS will approach the rest of its product lines (including the ever-popular Form I-129).  Subscribe to this blog to get future updates on immigration developments in the news.