Dec
18

IIUSA Press Release: New USCIS Data Shows Remarkable Growth for EB-5 Program

New USCIS Data Shows Remarkable Growth for EB-5 Program

IIUSA analysis points to staggering increase in qualified funds raised and projected job creation.

Chicago (PRWEB) December 17, 2014

The Association to Invest in the USA (IIUSA), the national not-for-profit industry trade association for the EB-5 Regional Center Program (the “Program”), recently released its analysis of U.S. Citizenship and Immigration Services (USCIS) data demonstrating significant growth of the EB-5 program in FY2014.

Under EB-5, a program created by Congress with broad bipartisan support, foreign nationals who invest between $500,000 and $1,000,000 dollars in approved U.S. businesses are eligible for permanent residency if the U.S. government confirms that their investment created at least 10 American jobs within two years of the investment.

According to IIUSA analysis, the number of investors seeking to participate in the Program in FY2014 increased by 72 percent compared to FY2013, and the number of investors requesting approval for permanent residency based on demonstrated job creation has more than doubled.

Specific data points of interest include:

  • In FY2014, USCIS received 10,928 I-526 petitions to determine eligibility for the EB-5 Program, compared to 6,346 I-526s received in FY2013.
  • USCIS approved 5,115 I-526 petitions in FY2014 – representing approximately $2.6 billion in capital designated for investment in U.S. job-creating projects
  • In FY2014, USCIS received 2,516 I-829 petitions to remove visa conditions based on demonstrated job creation compared to 1,217 I-829s received in FY2013
  • USCIS approved 1,603 I-829 petitions which represents at least 16,030 American jobs created by EB-5 capital

“The numbers released by USCIS point to astounding growth of investors participating in the EB-5 Program as well as investors demonstrating jobs created by EB-5-funded projects,” said IIUSA Executive Director Peter Joseph. “The increase of approved investors in the past year, compared to those from 2008 when our country was entering its devastating economic downturn, is nearly 800 percent; and the number of completed projects in FY2014 has similarly skyrocketed. Public and private developers alike have found EB-5 to be immensely valuable in bringing jobs and industry to the U.S., and these are the numbers to prove it.”

IIUSA’s analysis also notes that 1,266 I-526 and 178 1-829 petitions were denied, demonstrating the rigorous scrutiny and oversight exercised by USCIS as well as the risk required by law for those participating in the EB-5 program.

“USCIS has taken important steps in the last year to improve its ability to evaluate petitions and projects and strengthen the integrity of the program,” said Joseph. “IIUSA will continue to advocate for integrity measures as well as Congressional reauthorization of the program that continues to bring much-needed capital and job creation to communities across the country.”

Dec
08

Final Notice: EB-5 Regional Centers Must File Form I-924A by Dec. 29

This is a final reminder that Form I-924A, the annual reporting form used to demonstrate continued eligibility for the Regional Center designation, and Supplement to Form I-924 for fiscal year 2014, must be filed by December 29.

 

On November 6, IIUSA hosted a webinar on the topic of I-924A filing featuring IIUSA President K. David Andersson, IIUSA Vice President Robert C. Divine, and Klasko Law Partners Associate Daniel B. Lundy. This webinar is available for purchase for $99 by clicking here and using the memberdiscount code. Furthermore, all IIUSA members can view the PowerPoint presentation slides and supplemental documents from the webinar byclicking here. 

 

As a note, 340 of the 369 Regional Centers approved as of September 30, 2013 submitted timely I-924As for that fiscal year;  Of the remaining 29, some filed late and some were issued a Notice of Intent to Terminate (NOIT) and some ultimately were terminated for failing to file (it is not clear how many might have been forgiven for failure to file on time).

 

An additional 24 NOITs were issued and remain pending based on failure to fulfill job promotion obligations under 8 C.F.R. 204.6(m)(6), and the speakers acknowledged that a letter explaining steps taken to cultivate projects may carry sufficient weight to counterbalance a lack of projects and related filings.

 

USCIS Reminder To File I-924A

On December 3rd, U.S. Citizenship and Immigration Services sent an e-mail reminder to all EB-5 Regional Centers & EB-5 stakeholders to file Form I-924A by December 29. Read the full message below:

USCIS reminds all approved EB-5 regional centers with a designation letter dated on or before Sept. 30, 2014, that they must file Form I-924A, Supplement to Form I-924, for fiscal year 2014. Regional centers must submit Form I-924A no later than Dec. 29, 2014.

If a regional center fails to file Form I-924A, USCIS will issue a notice of intent to terminate participation in the EB-5 Immigrant Investor Program. If a regional center files an incomplete Form I-924A, USCIS may issue a notice of intent to terminate participation.

Notice About Terminated Regional Centers

A regional center that has been terminated from the EB-5 program may not solicit, generate or promote investors or investments for any other EB-5-related projects, or otherwise participate in the Immigrant Investor Program.    

About Form I-924A

Regional centers are required to submit Form I-924A every year to demonstrate continued eligibility for the regional center designation. See 8 CFR 204.6(m)(6).

There is no filing fee for Form I-924A. To learn more about where to file, visit the I-924A Web page.

When Completing Form I-924A 

Complete the entire form annually. In some cases, USCIS may request that a regional center submit information covering more than one fiscal year on Form I-924A. In that case, complete Part 2 (b) to identify the period of time and the information requested by USCIS. 

For more details, refer to Questions and Answers: Form I-924A.

Dec
04

Executive Action Summary: Obama Legalizes Undocumented, Tweaks EB Categories by Robert C. Divine

President Obama’s executive order on immigration, announced last Thursday, November 20th is expected to have wide-ranging implications on policy affecting millions of undocumented persons living in the United States.

However, EB-5 stakeholders should note that these executive actions on immigration will have no immediate impact on the EB-5 Regional Center Program. Most notably, President Obama chose not to declare that family members not count against employment-based immigrant visa allocations. This provision would have had the effect of nearly tripling visas.

IIUSA Vice President Robert C. Divine’s summary of the executive action (below) notes the significant policy changes that are underway.


Obama Legalizes Undocumented, Tweaks EB Categories

by Robert C. Divine, Vice President, IIUSA, Shareholder,  Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C.  

On November 20, 2014, President Obama announced a bold series of measures to change removal priorities, temporarily legalize and grant work authorization to millions of undocumented persons, and make some other changes to employment-related immigration processes. The changes, summarized at http://www.uscis.gov/immigrationaction, were implemented primarily through a set of memos from the Secretary of Homeland Security and include the following:

1. Expanded Deferred Action. Two different groups of applicants can apply for “deferred action,” meaning they will be protected from removal, and receive work authorization, in three-year increments, even if previously removed or ordered removed. Employers will need to be prepared to deal with verification challenges when legalized workers present new identities with work authorization documents.

A. Childhood arrivals. Expands prior program. Apply after February 19, 2015, and show the applicant:

  • Came to the United States under the age of 16;
  • Has “continuously resided” in the United States since before January 1, 2010;
  • Currently is in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
  • Has not been convicted of a “felony” offense, a street gang offense, a “significant misdemeanor” offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and/or
  • Is age 15 or older to request deferred action affirmatively from U.S. Citizenship and Immigration Services (USCIS) (as opposed to those facing removal action by Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP), who apparently can apply even if under age 15).

B. Parents of U.S. Citizens (USCs) or Lawful Permanent Residents (LPRs). Apply after May 16, 2015, and show they:

  • Have a son or daughter who is a U.S. citizen or lawful permanent resident born on or before November 20, 2014;
  • Have continuously resided in the U.S. since before January 1, 2010;
  • Were physically present in the U.S. on November 20, 2014, and when applying;
  • Had no lawful status on November 20, 2014; and
  • Are not an “enforcement priority” (have not been convicted of a “felony” offense, a street gang offense, a “significant misdemeanor” offense, multiple misdemeanor offenses, have been ordered removed after January 1, 2014, or otherwise pose a threat to national security or public safety).

2. Prioritized Removal Efforts. Enforcement agents are directed to focus resources more strictly on national security threats, serious criminal offenders, and people ordered removed only after January 1, 2014. While the “Secure Communities” program is terminated, some approximation of it will be restored but with only “notification” by local police when they are about to release someone of interest, not “detainer” except in specific instances.

3. Provisional waivers of unlawful presence. Waivers will be expanded by regulation from “immediate relatives” only to beneficiaries of any family-based immigrant petition. This is a technical solution for people who would qualify for green cards except for having overstayed or violated their status, allowing them to apply for a waiver within the U.S. without first having to leave the country.

4. Advance parole solution. Department of Homeland Security (DHS) will clarify that people who depart the U.S. under DHS-granted “advance parole” will not be considered to be “departing” the U.S., so that they do not trigger a bar on reentry, and so that their return can essentially cure a single prior “entry without inspection” and might make them eligible for the procedural benefit of completing any permanent residence process within the U.S. rather than through a visa abroad. Apparently this will allow some of the people gaining “deferred action” above to obtain green cards over time under otherwise normal rules.

5. EB Tweaks. These tweaks liberalize certain employment-based visa categories and processes, including development of agency guidance or regulations to:

  • Re-vamp how permanent visa backlogs are administered so that no limited numbers are wasted (seemingly stopping short of recapturing visa numbers previously wasted, as previously discussed);
  • Clarify when certain job changes for longstanding applicants for “adjustment of status” are considered in the “same or similar occupation” so that the worker still qualifies (apparently not allowing adjustment applications to be filed before a visa number becomes available);
  • Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises;
  • Authorize parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research (which is a procedurally radical unilateral creation of a de facto visa category not approved by Congress);
  • Allow work authorization to spouses of H-1B professional workers who have reached certain stages of employment-based sponsorship to green card;
  • Allow further extensions, beyond 29 months, of F-1 “Optional Practical Training” for graduated college students in science, technology, engineering and mathematics fields;
  • Clarify the meaning of “specialized knowledge” for L-1 transferees within a multinational business;
  • Revise the “PERM” permanent labor certification process in unspecified ways; and
  • Expand the crimes for which alleged victims may obtain T and U status for cooperation with the Department of Labor in workforce abuse investigations. Employers may need to consider compliance programs and other steps to guard against abuse of these incentives.

Note: President Obama apparently chose NOT (yet) to declare that family members not count against employment-based immigrant visa allocations, which would have had the effect of nearly tripling visas.

6. Family Members of Enlistees. Allow parole-in-place and deferred action for certain family members of enlistees and the availability of deferred action to undocumented family members of U.S. military members and veterans who were inspected and lawfully admitted.

7. Naturalization. Allow more flexible payments for naturalization applications, such as through credit card, and promote citizenship education.

All of these measures will require further agency action to administer. Meanwhile, Senate and House representatives may either seek to block the measures through appropriations or other processes or to complement them with more comprehensive legislation. ■

Dec
01

U.S. Citizenship and Immigration Services’ (USCIS) Adjudication Data on I-526 & I-829 Petitions Reveal Unprecedented Growth Of the EB-5 Program in Fiscal Year 2014

On November 21st, U.S. Citizenship and Immigration Services (USCIS) published updated data pertaining to the number of I-526 petitions (Immigrant Petition by Alien Entrepreneur) and  I-829 petitions (Petition by Entrepreneur to Remove Conditions) received, approved, denied and pending. The figures paint a picture of extraordinary growth of the EB-5 Program in Fiscal Year 2014.

FY-2014 I-526 Data Highlights:

  • In total, there were 12,453 petitions pending at USCIS as of 10/1, representing over $6.2 billion dollars in foreign direct investment into the U.S.
  • The total number of I-526 receipts in FY-2014 were 10,928. This represents a 72.2% increase from FY-2013 (6,346), the largestpercentage increase year-over-year since 2010-2011.
  • A total of 5,115 I-526 petitions in FY-2014 were approved, with an approval rate of 80.2%. This is fairly consistent with the average I-526 approval rate between 2008 and 2014 (81.14%).
  • There were a total of 1,266 I-526 petitions denied in FY-2014.

FY-2014 I-829 Data Highlights:

  • The total number of I-829 receipts in FY-2014 were 2,516. This represents a 106.7% increase from FY-2013 (1,217), the largest percentage increase year-over-year since 2010-2011.
  • A total of 1,603 I-829 petitions in FY-2014 were approved, with an approval rate of 90.2%. This is fairly consistent with the average I-829 approval rate between 2008 and 2014 (90.8%).
  • There were a total of 178 I-829 petitions denied in FY-2014.


IIUSA Members: View the complete chart of I-829 statistics (FY-1992-FY2014), including data visualizations of total receipts, growth rates and approval rates. 

Nov
28

IIUSA Questions on Statistics, Administation and Policy Delivered to USCIS in Advance of 12/5 EB-5 Stakeholder Meeting

On November 3, the U.S. Citizenship and Immigration Services (USCIS) Office of Public Engagement announced the next EB-5 Program Stakeholder engagement will be held on Friday December 5th from 1:00 pm to 3:00pm EST.

After soliciting comment from the Membership, IIUSA delivered a series of questions to USCIS pertaining to adjudication statistics and processing times as well as administration and policy.

Statistics

1. Please provide the most recent quarterly statistics for:

a. Form I-526 received/approved/denied/pending;

b. Form I-829 received/approved/denied/pending;

c. Form I-924 Regional Center proposals received/approved/denied?

d. Form I-924 Regional Center amendments received/approved/denied?

e. How do these statistics compare to the preceding four quarters?

f.  How many Regional Center proposals are pending?

g. How many Regional Center amendments are pending?

2. Please list the processing times for the following EB-5 related Forms and how the times compared to target processing times.

a. Form I-526

b. Form I-829

c. Form I-924 for new Regional Centers

d. Form I-924 for amendments to Regional Centers

3. How many questions are currently pending in the EB-5 e-mailbox?  What is the average response time for these inquiries?

4. How many adjudicators currently work on EB-5 related petitions?

5. What other personnel changes have been made at the USCIS Investor Program Office (IPO) since the last stakeholder engagement in September?

Administrative

6. Is the EB-5 unit in the DC office fully staffed now?  If so, how many adjudicators do you have?  How many supervisors?  How many economists?  If not fully staffed yet, when do you plan to be fully staffed?  How many personnel will you have when fully staffed?  What forms are currently being adjudicated there?

7. Do you operate in teams by Regional Center?  In other words, do you have the same adjudications team and economists review I-526 petitions filed through a particular regional center?

8. How do you handle I-526 petitions filed with an associated pending or approved I-924 for a given Regional Center project?

9. Have I-829 adjudications be transferred to the DC office?

10. On average, how long does it take for USCIS to decide an EB-5 case after an RFE reply has been submitted?

11. What are the major goals for the EB-5 unit in 2015?

12. How much is the Electronic Immigration System (ELIS) being used for the EB-5 Program?

13. To what extent does USCIS share information with other agencies, particularly the SEC and Commerce Department?  Does USCIS have a formal or informal memorandum of understanding with those agencies or any others regarding EB-5 cases or issues?  If so, could those memoranda be made public?

14. What is the status of the Department of Commerce economic impact study on the EB-5 Program?

15. How often is the “Special Review Board” announced in July being utilized?  If so, what actions has it taken thus far?  Are records available for the proceedings?

16. What other federal agencies does USCIS collaborate with on administration and enforcement of the EB-5 Program?

17. How are the newly hired corporate and securities attorneys at USCIS involved in the adjudications process?

18. What is the status of USCIS drafting new regulations for the EB-5 Program, as described in the USCIS response to the recent Office of Inspector General (OIG) report on the EB-5 Program?

Policy

19. What is required to “maintain investment” for I-829 purposes?  More specifically, can USCIS devise a policy that allows successful projects to be sold or refinanced (i.e., not have to miss out on an attractive liquidation opportunity) before the end of conditional residence of EB-5 investors?  This is particularly important for if/when there is “retrogression” of EB-5 visa availability.

Nov
18

USCIS Requests Public Comment on I-924 & I-924A Through Dec. 22nd

On September 23rd, the U.S. Citizenship and Immigration Services (USCIS) issued a 60 day notice requesting public comment on Form I-924 and I-924A. The last day for comment will be next Saturday December 22nd. You can read the notice published by USCIS in the Federal Register in PDF or online.

SUMMARY: The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) invites the general public and other Federal agencies to comment upon this proposed revision of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the Federal Register to obtain comments regarding the nature of the information collection, the categories of respondents, the estimated burden (i.e., the time, effort, and resources used by the respondents to respond), the estimated cost to the respondent, and the actual information collection instruments.

DATES: Comments are encouraged and will be accepted for 60 days until
December 22, 2014.

ADDRESSES: All submissions received must include the OMB Control Number 1615-0061 in the subject box, the agency name and Docket ID USCIS- 2007-0046. To avoid duplicate submissions, please use only one of the following methods to submit comments:
(1) Online. Submit comments via the Federal eRulemaking Portal Web site at www.regulations.gov under e-Docket ID number USCIS-2007-0046;
(2) Email. Submit comments to USCISFRComment@uscis.dhs.gov;
(3) Mail. Submit written comments to DHS, USCIS, Office of Policy and
Strategy, Chief, Regulatory Coordination Division, 20 Massachusetts Avenue NW., Washington, DC 20529-2140.

EB-5 Regional Centers: Reminder to File I-924A 
This is a quick reminder to all EB-5 Regional Centers that it is time to file Form I-924A, the annual reporting form used to demonstrate a Regional Center’s continued eligibility for the Regional Center designation.

This form must be filed for each fiscal year (October 1 through September 30) within 90 days after the end of the fiscal year (on or before December 29) of the calendar year in which the fiscal year ended. The failure to timely file a Form I-924A Supplement will result in the issuance of an intent to terminate the participation of the regional center, which may ultimately result in the termination of the approval and designation of the regional center.

As a note, 340 of the 369 Regional Centers approved as of September 30,2013 submitted timely I-924As for that fiscal year;  Of the remaining 29, some filed late and some were issued a Notice of Intent to Terminate (NOIT) and some ultimately were terminated for failing to file (it is not clear how many might have been forgiven for failure to file on time).

An additional 24 NOITs were issued and remain pending based on failure to fulfill job promotion obligations under 8 C.F.R. 204.6(m)(6), and the speakers acknowledged that a letter explaining steps taken to cultivate projects may carry sufficient weight to counterbalance a lack of projectsand related filings.

IIUSA Members can view the powerpoint presentation from the November 6th webinar “Year Four of Regional Center Annual Reporting on Form I-924A” byclicking here. The webinar featured IIUSA President K. David Andersson, IIUSA Vice President Robert C. Divine, and Klasko Law Partners Associate Daniel B. Lundy.

The webinar recording is also available for $99/members and $199/nonmembers here.
Nov
12

Attention all EB-5 Regional Centers: I-924A Filing Reminder, Webinar Now Available OnDemand

Form I-924A – Annual Reporting for EB-5 Regional Centers

This is a quick reminder to all EB-5 Regional Centers that it is time to file Form I-924A, the annual reporting form used to demonstrate a Regional Center’s continued eligibility for the Regional Center designation.

This form must be filed for each fiscal year (October 1 through September 30) within 90 days after the end of the fiscal year (on or before December 29) of the calendar year in which the fiscal year ended. The failure to timely file a Form I-924A Supplement will result in the issuance of an intent to terminate the participation of the regional center, which may ultimately result in the termination of the approval and designation of the regional center.

As a note, 340 of the 369 Regional Centers approved as of September 30,2013 submitted timely I-924As for that fiscal year;  Of the remaining 29, some filed late and some were issued a Notice of Intent to Terminate (NOIT) and some ultimately were terminated for failing to file (it is not clear how many might have been forgiven for failure to file on time).

An additional 24 NOITs were issued and remain pending based on failure to fulfill job promotion obligations under 8 C.F.R. 204.6(m)(6), and the speakers acknowledged that a letter explaining steps taken to cultivate projects may carry sufficient weight to counterbalance a lack of projectsand related filings.

IIUSA Members can view the powerpoint presentation from the November 6th webinar “Year Four of Regional Center Annual Reporting on Form I-924A” byclicking here. The webinar featured IIUSA President K. David Andersson, IIUSA Vice President Robert C. Divine, and Klasko Law Partners Associate Daniel B. Lundy.

The webinar recording is also available for $99/members and $199/nonmembers here.
Nov
05

USCIS Announces next EB-5 Immigrant Investor Program Stakeholder Engagement to take place on December 5th

On November 3rd, the U.S. Citizenship and Immigration Services (USCIS) Office of Public Engagement announced the next EB-5 Program Stakeholder engagement will be held on Friday December 5th from 1:00 pm to 3:00pm EST. Stakeholders can register to attend in person or via teleconference. Below is the full message and link to invitation (PDF).

Dear Stakeholder,

U.S. Citizenship and Immigration Services (USCIS) invites you to participate in a stakeholder engagement session on Friday, Dec. 5, from 1 to 3:00 p.m. Eastern to discuss the Immigrant Investor Program. This engagement is part of our efforts to enhance dialogue with external stakeholders regarding the program, also known as EB-5.

During the first part of this engagement, we will provide EB-5 program updates from fiscal year 2014 and discuss initiatives for fiscal year 2015. The second part of the engagement will be a question-and-answer session. You may ask non-case specific questions or provide feedback on the EB-5 program.

You can attend this engagement either in-person or by teleconference. Please note that in-person attendance is limited to the first 80 people who register.

To register for this session, please follow the steps below:

  • Visit our registration page to confirm your participation
  •  Enter your email address and select “Submit”
  •  Select “Subscriber Preferences”
  •  Select the “Event Registration” tab
  •  Be sure to provide your full name and organization
  •  Indicate if you plan to attend in-person or by teleconference; and
  •  Complete the questions and select “Submit”

If attending in-person, please RSVP for this event no later than Friday, Nov. 14.

Once we process your registration, you will receive a confirmation email with additional details.

To submit questions before the teleconference, please:

If you have any questions regarding the registration process, or if you have not received a confirmation email within two business days after you register, please email us at Public.Engagement@uscis.dhs.gov.

We look forward to engaging with you!

Nov
05

RCBJ Retrospective: The Latest Analysis of What USCIS Looks For in EB-5 I-829 RFEs and Denials

The Latest Analysis of What USCIS Looks For in EB-5 I-829 RFEs and Denials (Vol. 2, Issue, 3, October, 2014 Pgs. 16-19)

By Sonia Sujanani, Student, Cornell Law School, Stephen Yale-Loehr, IIUSA President Emeritus, Founding President/CEO (2005-2010) Of Counsel, Miller Mayer, LLP and  ROBERT C. DIVINE, IIUSA Vice President, Head of Global Immigration Practice, Baker Donelson Bearman Caldwell & Berkowitz, PC

3headshots

Introduction

In three previous articles, published in 2012, 2013, and early 2014, we analyzed and interpreted over 2,700 pages of I-829 EB-5 requests for evidence (RFEs) and denial notices released by U.S. Citizenship and Immigration Services (USCIS) in response to three separate Freedom of Information Act (FOIA) requests filed by Invest In the USA (IIUSA), the trade association of EB-5 immigrant investor regional centers. The I-829 responses in the previous requests ranged from 2008 to early 2013. In mid-2014 IIUSA received an additional 1,068 pages of I-829 responses.

This article expands on our three previous articles by analyzing a number of recent EB-5 I-829 petitions from 2013 and one from 2014. The current article expands on the previous 509 cases  by adding an additional 245 petitions. The fourth of its kind, this article cumulatively analyzes all four FOIA requests, which total 3,801 pages and 754 I-829 petitions.

This series of articles analyzes real USCIS responses to I-829 petitions. The materials re-leased in response to the four FOIA requests are instrumental in understanding how USCIS applies EB-5 law to specific factual situations in the I-829 context. As such, this series of articles aims to inform practitioners and potential immigrant investors of trends in USCIS adjudications and how those trends have developed.

EB-5 Overview

The EB-5 visa program has existed for over two decades. Congress enacted the EB-5 program in 1990. At the time, the program granted lawful permanent resident status to immigrant investors who directly invested in and managed job-creating commercial enterprises. Since 1992, with enactment of the Immigrant Investor Pilot Program, potential immigrant investors could also invest through EB-5 regional centers. In 2012, Congress reauthorized the regional center program through September 30, 2015. Today, there are nearly 600 approved EB-5 Regional Centers. By comparison, there were only twenty-five EB-5 regional centers in 2006. The EB-5 program is growing in multiple ways: geographically, investor interest is now coming “from all corners of the globe,” and EB-5 filings have increased year over year for the past several years. In fiscal year 2013, the U.S. government issued 8,564 EB-5 visas.

As background, a potential EB-5 recipient must first file an I-526 petition for classification in the EB-5 category. Upon USCIS’s approval, the investor becomes a conditional resident for two years. Potential EB-5 recipients must undergo a procedure to remove conditions at the end of this two-year conditional period. The procedure is analogous to that followed by people who obtain conditional residence through marriage to a U.S. citizen or lawful permanent resident. The petition to remove conditions is filed on form I-829 and submitted to USCIS’s California Service Center. This petition must be accompanied by evidence that the applicant has fulfilled all requirements of the EB-5 program, including that the applicant has invested the required capital and that the investment created or will create ten full-time jobs for U.S. workers. The applicant may prove that the jobs were created by including payroll records, relevant tax documentation, and Forms I-9. The I-829 form must also prove that the applicant has “substantially met” the capital investment requirement and has continuously maintained his or her investment during the conditional two-year period.

In May 2013, USCIS issued an EB-5 Adjudications Memorandum clarifying the goals of the EB-5 program. The EB-5 program has three essential elements: “(1) (t)he immigrant’s investment of capital, (2) in a new commercial enterprise, (3) that creates jobs.”  Each of the requirements for removal of conditions is tied to these three elements.

Methodology

We reviewed the I-829 RFEs and denials released by USCIS to IIUSA in July, 2014 (the fourth FOIA response). This FOIA response did not include investors’ responses to the RFEs or any motions to reopen following I-829 denials. Therefore we do not know the ultimate outcome of the cases.

If USCIS denies an I-829, there is normally no appeal to the agency’s Administrative Appeals Office (AAO) unless USCIS itself certifies the case to the AAO. After an I-829 denial USCIS terminates an EB-5 investor’s status and issues a notice to appear before an immigration judge in removal proceedings. If an immigration judge rules against the investor, the investor can appeal to the Board of Immigration Appeals and then to federal court. We are not aware of any BIA decisions concerning EB-5 investors.

We classified the I-829 materials by issue type focusing on the same six issues as our previous articles: (1) job creation; (2) sustaining the investment, (3) redemption; (4) pooled trust, (5) business plan; and (6) material change. As in previous articles there were also some miscellaneous issues. In addition, some responses were so heavily redacted that it was impossible to identify any issue. These responses were classified as “No Issue.”

We aggregated the 245 case responses from the latest FOIA request responses and coded them into an Excel document called “I-829 cumulative Excel 8.28.14.xslx.” We preserved the 509 case responses from the earlier FOIA requests (167, 302, and 40 responses, respectively) and incorporated them into this Excel document as well. Finally, we aggregated the data from the four requests to show trends over time. We used pivot-tables and pivot-charts to map the trends, one of which is re-produced below.

Results and Analysis
Fourth FOIA Response

USCIS I-829 RFEs and denials in the latest FOIA response typically identified one or more of the following issues: job creation, sustaining the investment, redemption, miscellaneous, material change, and business plan. There were no pooled trust issues in the latest FOIA response. The high prevalence of job creation mirrors a USCIS trend. This is unsurprising given the goals of the EB-5 program discussed above.

In total, job creation issues comprised 34% of the cases analyzed in the latest FOIA response. Sustaining the investment arose in 61% of cases. Redemption issues arose 6% of the time. Miscellaneous issues accounted for 29% of cases. All other issues arose less than 5% of the time.

Some cases contained multiple issues. Job creation issues typically arose where there was a problem with the I-9 forms or other employment verification evidence was missing. In several cases, fraud or feared fraud was the issue. This is unsurprising. In the words of USCIS Ombudsman Maria Odom, “[EB-5] (p)rogram integrity is critical, and the agency should use existing USCIS Fraud Detection and National Security resources to identify and take action as warranted.”

USCIS requests for evidence in I-829 petitions tend to request the following evidence to support the investor’s claim that he or she has maintained his or her investment in an ongoing business creating jobs:

  • Federal income taxes, with all schedules and attachments, income statements and balance sheets with any financial statements provided (sometimes USCIS requires copies of returns signed by the company and certified by IRS or originally date stamped computer printouts from IRS), including all partners’ K-1 forms;
  • Business licenses at city, county or state or federal level;
  • Utility bills (usually “most recent” are re-quested);
  • Sales tax returns;
  • Seller’s permit from the state board of equalization or the like, or evidence that one is not required for the enterprise;
  • Major sales invoices that identify the gross sales amount reported on the income and expenses statement or on federal and state corporate income taxes;
  • Lease documents, all the way up to the primary lease in the event of a sublease;
  • Floor plan of the business premises showing the space occupied and used exclusively by the enterprise;
  • Detailed accounts of the enterprise’s expenditures reflecting dates, amounts, identity of payee, and reason for payment, such as bank statements, cash disbursement journals, details from relevant general ledger accounts, and other financial records;
  • Bank statements, invoices and/or receipts, contracts, and current business license;
  • Owned premises: escrow documents used to produce the property and evidence of title, available in the public records of the county recorder’s office;
  • Assets: some of the major assets that have been purchased for use in the project, including copies of invoices, sales receipts and purchase contracts containing sufficient information to identify such assets, their purchase cost, date of purchase, and purchasing entity;
  • Photographs of the inside and outside of the project, showing any company logos, emblems, or signs displayed on or in the building; color photos should show both the inside and outside of all production, warehouse, office and other spaces with equipment, merchandise, products, and employees clearly visible. If space is shared, identify each other organization which is also using the space and identify who uses which space;
  • Employment advertisements and documentation of hiring efforts;
  • Bank statements showing amounts deposited in the enterprise’s U.S. business ac-counts;
  • Evidence of all property transferred from abroad for use in the enterprise, including U.S. Customs Service commercial entry documents, bills of lading, and transit insurance policies containing ownership information and sufficient information to identify the property and to indicate the fair market valuation of such property;
  • Evidence of monies transferred or committed to be transferred to the enterprise in exchange for shares of stock; and
  • Evidence of borrowing secured by assets of the petitioner for which petitioner is personally and primarily liable.

To show direct job creation, USCIS typically requires the following:

  • For U.S. citizens: birth certificates with photo identification, certificates of naturalization, or the biographical page of U.S. passports;
  • For permanent residents, copy of valid permanent resident card, reentry permit, recent I-485 approval notice, valid audit (I- 551) stamp on or opposite immigrant visit in passport along with passport bio/photo page;
  • For asylees or refugees: biographical page and photo page of I-571 Refugee Travel Document. If not received yet, refugee or asylee cachet stamp placed in the individual passport at the time of entry into the U.S. along with passport bio/photo page;
  • For a foreign national granted suspension of deportation: copy of immigration judge’s decision to grant suspension of deportation (or, ostensibly, cancellation of removal);
  • State quarterly wage reports;
  • I-9 forms for each employee hired by the enterprise. Note that I-9s should be properly completed, signed and dated by the worker and the employer representative;
  • IRS Forms 941;
  • Federal tax returns;
  • Federal forms W-2 or W-3 for each employee; and
  • If available, E-Verify confirmation reports.

USCIS frequently states the following in I-829 RFEs about job creation:

USCIS understands that an employer is not expected to know with-out absolute certainty whether a document is genuine or not. However, with the filing of a petition before USCIS seeking benefits for aliens, the employer should follow appropriate guidelines in determining whether or not the evidence submitted for benefits meets the regulatory guidelines needed to be granted the benefit. In this instance, as noted above, the information provided with the filing of the instant petition does not meet EB-5 guidelines.

The creation of 10 full-time jobs for qualified employees is one of the criteria that need to be met. Employing individuals who are not qualifying employees and/or may have obtained their evidence through fraudulent means does not meet the criteria established for the creation of 10 full-time jobs or qualified employees through investment. Thus, although it is not a requirement for an employer to verify the status of an employee it seeks to hire through E-Verify, if the employer wishes to seek an immigration benefit for an individual by filing a petition before USCIS, it is recommended that the employer determine that the evidence presented for employment and later with the filing of a petition before USCIS meets EB-5 guidelines.

USCIS appears routinely to check various databases in I-829 adjudications, including the following:

  • State Secretary of State databases reflecting the status of registration of the enterprise. Sometimes parties fail to maintain these registrations, and USCIS has claimed that such failure results in failure of the petitioner to demonstrate that he has in good faith substantially met the capital investment requirement and maintained his capital investment when the new commercial enterprise is no longer authorized to conduct business in the state. Thus, investors should check state registration status before filing I-829.
  • Google search for the enterprise’s business. While such a website is not required, USCIS has mentioned the lack of credibility of the absence of an enterprise website when substantial marketing of the business’s products or services is part of the plan.
  • USCIS records concerning any permanent residence or other immigration status claimed concerning workers to be counted toward the ten full-time employee requirement.

charts

Biometrics Requests and other issues in the fourth FOIA response

Numerous I-829 RFEs and denials issued in 2013 concerned the failure to supply updated biometric information. These RFEs and denials concerned investors in the Chang class action litigation. That case, filed in 1998, challenged the retroactive application of new rules applied by the legacy Immigration and Naturalization Service to EB-5 investors. The Ninth Circuit ruled in 2003 that the agency could not apply its new EB-5 interpretations retroactively to investors who had already obtained conditional resident status. The case was eventually settled fifteen years later, in March 2013. The settlement agreement provided for the approval of I-829s for class members, contingent upon the completion of certain conditions, including the submission of updated biometric information for criminal and national security background checks. If Chang class members failed to supply their biometric information, RFEs, and then denials, followed. In our view, the RFEs and denials relating to the Chang case were a one-time event and are not relevant in analyzing general I-829 trends.

Somewhat more surprising in the latest batch of I-829 RFEs and denials was an in-crease in RFEs on sustaining the investment. However, often there was not much information as to why that issue arose in a particular case. Many RFEs simply consisted of the same boilerplate language asking for additional information, such as updated K-1 annual statements.

A few miscellaneous issues arose because the applicant was already an unconditional permanent resident by the time their I-829 petition was reviewed. In several of those cases, the EB-5 investor had invested in one EB-5 project that ran into difficulties, with-drew their money, and invested in a second EB-5 project. They then obtained an I-829 approval in the second project. They apparently failed, however, to withdraw their first I-829 petition.

Cumulative Analysis

Cumulatively, this series of articles analyzed 754 USCIS responses from a six-year period ranging from 2008 to early 2014. The most prevalent issue, as in our previous articles, overall was job creation. Overall, job creation issues arose in 34% of the I-829 RFEs and denials that we reviewed. Although the percentage of job creation issues fluctuates from year to year, job creation has always been the most prevalent issue, except in 2013. Most job creation issues arose due to verification of employment eligibility and full-time/part-time job status. In particular, USCIS seriously reviews the forms I-9, Alien Registration Numbers, Birth Certificates, Passports, I-551 cards, and other documentation provided to support employment eligibility. It is in the best interests of practitioners and potential investors alike to keep accurate records and submit as much supportive evidence as possible to avoid an RFE. Similarly, UCSCIS routinely does a spot check of full-time/part-time status by calculating full-time wages (using the State minimum wage times the mini-mum number of hours a week to be full-time) and comparing these wages to the evidence.

The second most prevalent issue was sustaining the investment. Sustaining the investment issues often arose where the investment did not last the entire two-year conditional period, or insufficient evidence of investment was presented.

All other issues (miscellaneous, material change, business plan, redemption, pooled trust, and no issue) occurred at relatively similar rates. Given the small differences between the rate of occurrence of these issues in the six-year period and 754 cases, it is statistically impossible to differentiate the relative importance of each of these issues.

Conclusion

In total, IIUSA’s four FOIA requests resulted in the cataloging of 754 USCIS I-829 RFEs and denials. Although some years had smaller samples than others, certain trends have remained constant in the six-year cross-section these FOIA requests encompass. It is clear, for example, that job creation is the most prevalent issue in USCIS RFEs and denials.

Given the goals of the EB-5 program, it is no surprise that USCIS views the job creation requirement seriously. Practitioners and potential investors alike should bear in mind USCIS’s commitment to integrity and its searching review for fraud, particularly when verifying employment eligibility. Similarly, sustaining the investment has consistently appeared as the second most prevalent issue.

Nevertheless, current trends may differ from what we found in the data. This latest FOIA contained cases adjudicated as recently as January, 2014. However, since then USCIS has approved over 800 and denied nearly 100 I-829 petitions. Moreover, as of June 30, 2014, USCIS had a backlog of nearly 1,800 I-829 petitions. Thus, our sample of 754 cases continues to graze the surface of USCIS EB-5 I-829 adjudications, especially given the lack of follow-up responses to RFEs. However, the responses reveal a glimpse at USCIS’ EB-5 priorities in I-829 adjudications. ■

Oct
31

CIS Ombudsman Annual Conference Next Week (11/6) Will Discuss Immigration Challenges faced by Individuals, Families & Employers

The Office of the CIS Ombudsman invites stakeholders to its Fourth Annual Conference, titled “Government and Stakeholders Working Together to Improve Immigration Services,” on November 6th at the National Archives in Washington, D.C. The event is schedules from 8:30am to 4:30 pm and

This conference provides a forum to exchange ideas and suggestions on the current legal immigration challenges faced by individuals, families, and employers with leaders from across the government, non-governmental organizations and the private sector.

If you would like to attend, please register by emailing your name, title, business/organization/agency affiliation, and phone number tocisombudsman.publicaffairs@hq.dhs.gov with “Annual Conference” in the subject line. Registration will remain open until all registration slots are full.
For more information on the Ombudsman Annual Conference, including archives blog posts, teleconference and more, visit www.dhs.gov/public-engagement.