USCIS’s Summary of May EB-5 Stakeholders Meeting Provides More Info

After USCIS’s EB-5 stakeholders meeting (PDF) held on May 1, 2012, attendees lamented that the agency provided little substantive information and did not answer many submitted questions. Over 250 people attended in person, and over 300 listened by phone. USCIS subsequently released a summary of the meeting that provided additional information, presumably based on written questions that were submitted to the agency.

Among other things, USCIS noted that the USCIS Immigrant Investor Mailbox is administered full-time by an EB-5 supervisor. Most inquiries are addressed within two to three days of receipt, USCIS said. Some may take longer if research and coordination are required. USCIS said it notifies inquirers if additional time is needed.

One inquirer noted that USCIS says it takes cases on a first-in, first-out basis, but also that it is considering grouping regional center cases to be adjudicated by teams. The question was whether, if a regional center submits an amendment to an I-924, it would be included with the group or would go into the first-in, first-out process. USCIS answered that immigration services officer (ISO) specialization by regional center efforts are geared toward I-526 and I-829 adjudications, not I-924 adjudications. However, I-924 applications are given to ISOs familiar with the regional center applicant, if possible. USCIS said it still adheres to a first-in, first-out process when adjudicating cases in the I-924 application workflow queue and in the individual petition queues. Under ISO specialization, USCIS noted, when the time comes for adjudication, the application can be sent to an ISO familiar with the regional center and the capital investment project. If cases are pending beyond posted processing times, USCIS suggests contacting the EB-5 mailbox at EB-5ImmigrantInvestor@dhs.gov.

With regard to I-526 petitions, an inquirer asked USCIS to confirm whether, after the formulas and multipliers in an economic analysis have been approved by the agency as part of a regional center’s initial application, those approved formulas and multipliers may be updated with more current data (for example, updated RIMS II [Regional Input-Output Modeling System] multipliers of the most current year versus multipliers of a few years back when the regional center was approved) at the time of the actual I-526 or I-829 filing, as long as the methodology used is otherwise the same as what was approved by USCIS. The agency said this is acceptable as long as the applicants are consistent and don’t “cherry-pick” across a range of years. It is not acceptable to selectively use the highest multipliers available for each approved industry since the date the approval was issued.

For example, USCIS noted:

[I]f the applicant was approved in 2008 to use appropriately specified 2006 RIMS II …final demand multipliers for the construction and operation of an assisted living facility, then the applicant must use 2006 RIMS II final demand multipliers for both construction and operation of the facility, or 2007 RIMS II final demand multipliers for both the construction and operation of the facility, or 2008 RIMS II final demand multipliers for both the construction and operation of the facility, and so on. The petitioner may not use a 2006 RIMS II final demand multiplier for construction and a 2009 RIMS II final demand multiplier for operations simply because the RIMS II final demand multipliers for those two industries in those two years happen to be the highest multipliers published since the approval of the I-924.

Regarding avoidance of requests for evidence (RFEs), one inquirer asked whether USCIS will provide filing hints to assist in lowering RFE and denial rates. USCIS said it “has discussed developing filing hints and is looking at ways to be more proactive” in communicating with stakeholders. “Submitting the most detailed and comprehensive evidence of investment and job creation possible is the primary way to avoid receiving an RFE,” USCIS said.

USCIS noted that although it does not require applicants to use attorneys or economists in filing for any immigration benefits, a regional center application has a “robust evidentiary requirement.” It is possible to provide a simplified model, USCIS said, but “[i]n every case, the applicant must show a reasonable economic methodology to prove direct or indirect job creation.”

USCIS also noted that case status availability online is tied to CLAIMS 3. I-924 and I-829 processing times do not reside in CLAIMS 3. USCIS plans to have a common platform for all applications, petitions, and case status online in “a few years.” If stakeholders seek case status information because the case is exceeding posted processing times, USCIS said they should use direct e-mail or the EB-5 mailbox.

An inquirer asked about bridge financing, noting that this issue did not appear to be covered with specificity in the last draft of the policy memo. USCIS noted that the new commercial enterprise, not the EB-5 investors, must create the requisite employment. As such, USCIS said, it is acceptable for the developer or principal of a new commercial enterprise, either directly or through a separate job-creating entity, to use interim, temporary or bridge financing in the form of either debt or equity before receipt of EB-5 capital. If the project starts based on the bridge financing before receipt of the EB-5 capital and subsequently replaces it with EB-5 capital, the new commercial enterprise still gets credit for the job creation, USCIS said.

USCIS said that the following policy will be issued in the forthcoming EB-5 policy memo under Section C, Creation of Jobs:

It is important to recognize that while the immigrant’s investment must result in the creation of jobs for qualifying employees, it is the new commercial enterprise that creates the jobs. This distinction is best illustrated by an example:

Ten immigrant investors seek to establish a hotel as their new commercial enterprise. The establishment of the new hotel requires capital to pay financing costs, purchasing the land, developing the plans, obtaining the licenses, building the structure, taking care of the grounds, staffing the hotel, and the many other types of expenses involved in the development and operation of a new hotel. The immigrant’s investments can go to pay part or all of any of these expenses.