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EB-5 Investor and STEM Visa Status updates

Every day, a new article is published relating to recent immigration events. As a practitioner, which ones matters the most to your legal organization? How have policies and laws evolved and will they affect your practice?

House Passes the STEM Jobs Act of 2012

In the last week, there has been big news in the immigration world, in spite of the holiday reprieve. On November 30, 2012, the House of Representatives passed a revised version of Chairman Lamar Smith’s STEM Jobs Act of 2012 (H.R. 6429) after passing a special resolution that allowed for the bill to be voted in the House. The core of this bill is contingent on dismantling the Diversity Lottery Program and reallocating those visas to the STEM visa category. As of Monday, December 3, HR 6429 is being reviewed by the Senate. The popularity of a STEM visa is quite high, as evidenced by the four different legislative permutations introduced in Congress during the current congressional session. Unfortunately, its popularity also makes it a prized bargaining chip for both sides of the political party.

What about Start-Up Visas?

Despite its popularity, STEM visas do not adequately address the issue of job creation. This is where visas for entrepreneurs make the most sense but advancement of a Start-Up Visa still needs enough traction for a congressional vote.  That vote likely will not happen during the lame duck session.  For entrepreneurs/investors with much larger funds, the EB-5 program is probably the last resort. USCIS Director Mayorkas held a stakeholder meeting on Monday, December 3 to discuss the future of the program and to provide updates on the EB-5 program. In his usual humor, Director Mayorkas was candid and genuine in his concern about the EB-5 program challenges. Martin J. Lawler, Immigration Attorney at Lawler & Lawler, indicated, “We have never seen a USCIS Director take so much interest in any visa as Director Mayorkas has with EB-5s.” Director Mayorkas explained just how the EB-5 Program has evolved over the years into a highly complex program necessitating its very own universe of experts. From the many questions asked by attendees, it’s fair to say practitioners agree.

EB-5 Update: Statistics

Five years ago, there were only nine adjudicators at the California Service Center handling the EB-5 caseload. Now, there more are more than 50 individuals specifically tasked for this program (40 ISOs, 4 Supervisors, economists and attorneys). In 2008, there were roughly 640 approvals of Form I-526 Immigrant Petitions by Alien Entrepreneurs. For FY2011, USCIS approved about 3,700 petitions! The new EB-5 Program Office, located in Washington D.C., will report directly to the Deputy Director and be comprised of dedicated, full-time staff who will adjudicate only EB-5 petitions (I-526, I-924, and I-829 petitions).  CSC processing of EB-5 petitions will be phased out (though the timeline is still unclear).  Adjustment Applications (I-485) will be adjudicated at another USCIS location. One of the biggest concerns, as voiced by Ed Beshara, Adjunct Professor at the University of Florida, Levin College of Law and Managing Partner of Beshara P.A., is not so much the addition of dedicated staff members, but the assurance of a transparent and consistent adjudicative process. This concern was previously expressed in our July article on the EB-5 Program by Professor Beshara and remains a priority for many practitioners in order to appropriately manage risks and advise on legal issues.  “This goal of predictability and reduced time delays cannot be achieved unless the professionals and adjudicators in the EB-5 unit have a clear understanding and clarity of the EB-5 rules, regulations,processes, and policies.” Indeed, during FAQs that took more than an hour, practitioners were eager to debate policy issues, regulatory definitions and even adjudicative differences that warranted clarification.  The Director took these concerns under advisement but warned that guidance will be slow coming.

EB-5 Goals

The greater objective was to relieve the existing timelines for current adjudications of EB-5 petitions. Director Mayorkas indicated the immediate goal was to have the EB-5 Program Office up and running (i.e.: evaluating cases) within four to six months. The longer term objective was to adjudicate EB-5 cases within a 90-120-day processing time. This is indeed an ambitious processing time period in light of the fact that EB-5 petitions are riddled with complex economic issues that require intensive review and that the current adjudicative process is not clearly defined nor is it transparent. Mr. Lawler commented that the EB-5 Program Office “is still a work in progress. There is so far a disconnect between Director Mayorkas’ views and how CSC actually decides cases.” With the establishment of a Program Office in Washington D.C., Mr. Lawler is cautiosly optimistic. “I am hopeful the processing of cases will speed up.” The optimism was also reflected in the room full of immigration attorneys in spite of the many frustrations expressed during the FAQ period. Perhaps with Congressional focus on reforming immigration, USCIS will also shift towards providing clearer guidelines and more transparency into the EB-5 Program via the Program Office.  Time will certainly tell and we’ll continue to report on the progress of the Program Office.

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Did you attend the EB-5 Stakeholder Meeting in D.C. or via phone? Do you think the 90-120 day processing time period for EB-5s is achievable? Do you think the STEM Jobs Act of 2012 will be approved by the Senate?  We’d love to have you share your thoughts below. For future updates on EB-5, STEM or Start-Up Visas, please subscribe to the Case Management Guru Blog.