IIUSA Statement on Introduction of EB-Jobs Act (H.R. 3370), Legislation to Make EB-5 Program Permanent
As a reminder, U.S. Citizenship and Immigration Services (USCIS) recently issued an update to Form I-829, Petition by Entrepreneur to Remove Conditions. with an edition date of May 7, 2015. Beginning on Aug. 15, 2015, USCIS will only accept this edition.
For the courtesy of its members, IIUSA has also translated the updated I-829 form into Chinese. *
Below are updates to the the new form I-829, courtesy of Matthew Galati of EB-5 Insights Blog. The updated I-829 form consists of 13 pages of instructions and an 11-page form to be completed. There are a few important highlights of the new edition for attorneys, investors, and regional centers to note:
- More biographic information. Investors will need to disclose their height/weight, hair/eye color, and race/ethnicity, similar to what is presently done in Naturalization Applications.
- More information relating to the New Commercial Enterprise (NCE). The new form asks for additional information relating to the type of enterprise, similar to the I-526. Investors are also asked for the NCE’s North American Industry Classification Code (NAICS) and dates and amounts of all subsequent investments. The number of EB-5 investors in the NCE and their total capital must also be included. It is interesting to note this request, as it duplicates the information that regional centers are required to provide to the USCIS at the end of each respective fiscal year on the Form I-924A.
- Detailed information of direct job creation. In the new form, Investors must detail the number of full-time direct jobs at the time of initial investment and at the time of filing. Investors are also asked for estimates of direct jobs to be created within a reasonable amount of time if there is any delay in job creation.
- For Regional Center cases, detailed information of indirect job creation. Investors need to include a total number of indirect jobs created at the time of filing, as well as those to be created within a reasonable amount of time from filing. All RC-based filings must also include the RC Identification Number and the receipt number for the associated approved I-924.
- New procedures at the biometric appointment. At the time of the ASC appointment, the Form and instructions require the Petitioner to sign, under penalty of perjury, a declaration indicating that he/she has reviewed the I-829 filing and understand its contents, attesting that all materials filed are “complete, true, and correct.” The instructions to the new form recommend the petitioner review the filing prior to the appointment. If the petitioner cannot “make that attestation in good faith at that time,” USCIS will require the investor to return for another appointment.
Last week, U.S. Citizenship and Immigration Services (USCIS) announced its next EB-5 stakeholder engagement will be held on Thursday, Aug. 13, from 2 to 3:30 p.m. (Eastern) / 11 a.m. to 12:30 p.m. (Pacific). This engagement, held in Los Angeles, CA, is part of USCIS’ effort to enhance the dialogue between the agency and EB-5 stakeholders.
The last USCIS Stakeholder Engagement was held April 22, 2015. Topics included bridge financing, indebtedness and visa retrogression among others. To view IIUSA’s notes on the April 22 engagement please click here and to listen to an audio recording of the event click here.
During the first part of the upcoming engagement, USCIS officials will provide EB-5 program updates. The second part will be a question-and-answer session. USCIS invites you to ask non-case specific questions or provide feedback on the EB-5 program. The engagement can be attended either in person at the USCIS District Office, in Los Angeles, CA, or by teleconference.
To register for this event please follow the steps below:
- Visit the registration page to confirm your participation
- Enter your email address and select “Submit”
- Select “Subscriber Preferences”
- Select the “Event Registration” tab
- Complete the questions and select “Submit”
- Email Public.Engagement@uscis.dhs.
gov. Please submit all questions by Friday July 24, at 5 p.m. EST.
White House Releases Report on Modernizing & Streamlining the Immigration System – EB-5 Included in Recommendations
- reduce government costs, improve services for applicants, reduce burdens on employers, and combat waste, fraud, and abuse in the system;
- ensure that policies, practices, and systems use all of the visa numbers that Congress provides for and intends to be used, consistent with demand; and
- modernize the information technology infrastructure underlying the visa processing system with the goal to reduce redundant systems, improve the experience of applicants, and enable better oversight.
- Update standards for the EB-5 Program. By enhancing program integrity and updating eligibility requirements, this program can better serve our nation. DHS intends to pursue rulemaking to achieve those goals, including by requiring conflict-of-interest disclosures by Regional Center principals, enhancing background checks and public disclosure requirements, and increasing the minimum qualifying level of investment. DHS will also take steps to improve the adjudication and approval of Regional Center applications
- Clarify options for potential EB-5 investors to obtain visitor visas. State will amend its guidance in the Foreign Affairs Manual to clarify that potential EB-5 investors can 31 obtain visitor visas to examine or monitor potential qualifying investments if they otherwise qualify for the visitor visa.
The report recognizes the significant strides made in the recent past to improve the Program, including the creation of the Immigrant Investor Program Office (IPO) and move of operations from California to Washington, DC as well as the hiring of qualified economic and business experts to undertake the adjudication process. Additionally, the increase of interagency collaboration between USCIS and other relevant agencies contributed to the recent Program improvements.
Citizenship and Immigration Services Publishes Ombudsman 2015 Annual Report – RSVP By July 9th For Teleconference Discussion
On June 29, 2015, the Office of the Citizenship and Immigration Services Ombudsman published its 2015 Annual Report to Congress. By statute, the Office of the Citizenship and Immigration Services Ombudsman submits an Annual Report to Congress by June 30 of each year. The Ombudsman’s Annual Report must provide a summary of the most pervasive and serious problems encountered by individuals and employers applying for immigration benefits with U.S. Citizenship and Immigration Services (USCIS). The Annual Report also reviews past recommendations to improve USCIS programs and services.
Click to View the Annual Citizenship and Immigration Service Ombudsman Report for 2015. EB-5 is covered on pages 46-48.
The EB-5 Program is covered on paged 46-48 of the report, noting that “The EB-5 Immigrant Investor Program has surged in popularity in recent years as an effective way to attract foreign investment, to provide financing to large private and public projects, and for foreign nationals to obtain lawful permanent residency in the United States. While USCIS has hired new adjudicators and economists, it had 12,749 investor petitions (Form I-526, Immigrant Petition by Alien Entrepreneur) in its pending inventory as of March 31, 2015, with nearly 20 percent pending adjudication for more than a year; EB-5 processing times have been getting longer. USCIS has provided technical assistance to Congress and is actively working with other DHS and government agencies to put safeguards in place to ensure program integrity.”
The report on EB-5 concludes that the USCIS Immigrant Investor Program Office (IPO) leadership “is determined to reduce processing times and improve predictability and consistency in the EB-5 program, while simultaneously continuing to enhance overall program integrity. In the coming year, the Ombudsman will remain actively engaged in monitoring USCIS administration of this job-creating program.”
The Ombudsman’s Public Teleconference Series
The Ombudsman’s Office hosts public teleconferences to share information on specific topics and to hear your comments and suggestions regarding your interactions with the U.S. Citizenship and Immigration Services (USCIS). The Ombudsman welcomes you to join a teleconference discussion of the 2015 Annual Report to Congress.
When: Thursday, July 16, 2015; 1:00 – 2:00 P.M. Eastern Time
Please RSVP by Thursday, July 9, 2015 to CISOmbudsman.PublicAffairs@hq.dhs.gov.
Teleconference call-in information will be provided.
EB-5 Customer Support
Do you have a question about the Immigrant Investor Program, also known as “EB-5,” or one of the following forms?
- Form I-526, Immigrant Petition by Alien Entrepreneur
- Form I-829, Petition by Entrepreneur to Remove Conditions
- Form I-924, Application For Regional Center Under the Immigrant Investor Pilot Program
General Inquiries and Communications
Write to the EB-5 mailbox at USCIS.
- Check the status of an EB-5 application or petition that is outside normal processing times (For cases within processing times, please visit Case Status Online to view the status);
- Change the contact or attorney information on an EB-5 application or petition;
- Report changes to a designated regional center’s address, contact information, principal(s), contracting agents or other similar changes to its operation or administration (within 30 days);
- Report problems with EB-5 related biometric (e.g., fingerprint) processing;
- Report that an EB-5 petition receipt notice or Application Support Center notice has not been received or contains incorrect information;
- Request expedited processing of a pending EB-5 application or petition (the request must include supporting evidence to demonstrate that at least one of the criteria listed on the Expedite Criteria page has been met); or
- Report any EB-5 notice or decision that appears to contain a gross error.
Note: Writing to the EB-5 mailbox will not suspend any deadline for you to respond to a request for evidence, decision or notice or to file an appeal or a motion to reopen or reconsider a decision. Inquiries that are not EB-5 related will not be addressed.
Stakeholder EngagementsPlease contact us by email at IPOStakeholderEngagement@
- Inquire about upcoming EB-5 engagements; or
- Provide comments to USCIS relating to a stakeholder engagement.
The EB-5 mailboxes noted on this page are not a forum for:
- Policy and legal questions about adjudicative procedures or decisions;
- Questions about the interpretation, implementation or administration of EB-5 laws and regulations, or about official agency guidance related to the adjudication of EB-5 applications or petitions;
- Responses to case-specific requests for evidence, notices or decisions; or
- Any matters unrelated to the EB-5 program.
Please click on the links below for more information on specific topics.
|If you want to:|
|Check your case status online||https://egov.uscis.gov/cris/
|Send a case-specific inquiry||https://egov.uscis.gov/e-
|View EB-5 policy memoranda||EB-5 Policy Memoranda|
|Email the EB-5 stakeholder engagement team||EB-5 Stakeholder Engagement|
|View other general information on immigration benefits||http://www.uscis.gov|
RCBJ Retrospective: Removal of Conditions for EB-5 Investors: Practical Guidance in Preparing I-829 Petitions
Removal of Conditions for EB-5 Investors: Practical Guidance in Preparing I-829 Petitions (Volume 2, Issue 3, Pg. 22-24 )
by Elsie Hui Arias*, Partner, Stone Grzegorek & Gonzalez LLP
Securing the initial I-526 petition approvals for a particular new commercial enterprise (“NCE”) represents a significant milestone for a regional center. For the individual EB-5 investor, though, obtaining approval of the I-829 petition for removal of conditions is far more critical as the ultimate immigration goal — it allows the investor’s family to remain in the United States indefinitely. On the other hand, denial of the I-829 petition leads to termination of resident status and initiation of removal (deportation) proceedings. The stakes are high, and significant risk attaches to the removal of conditions process. Drawing from our law firm’s experience in successfully representing more than 1,000 individual investors across dozens of NCEs in removal of conditions cases, it is imperative that regional centers engage in careful planning about removal of conditions at the outset of raising EB-5 capital. Due consideration must be given to understanding the requirements for USCIS adjudication of I-829 petitions, monitoring significant events in the business of the job creating entity, tracking job creation progress, organizing supporting documentation, and engaging expert immigration counsel for guidance on how to craft successful I-829 petitions in an environment of constant business change. This article provides to regional centers an overview of the legal and regulatory requirements for I-829 petitions, as well as practical guidance in tackling challenging issues that may arise during the removal of conditions process.
To remove the conditions from permanent resident status, the EB-5 investor must file Form I-829 with USCIS within the 90-day window immediately preceding the expiration of the two-year conditional period. A failure to file timely may be excused only “for good cause and extenuating circumstances.” The divorced spouse of the petitioner and a child who has married since obtaining resident status may be included in, or may file separately, the I-829 petition to remove conditions. Also, the surviving spouse and children of an investor who has died may file an I-829 petition.
Upon the filing of the I-829 petition, USCIS will issue a receipt notice to the principal and verification notices to the dependents, reflecting that conditional resident status is automatically extended for one year (or until the I-829 petition is adjudicated). The notices also serve as a travel document, enabling the investor and family members to travel and return to the United States as conditional residents. Should the I-829 petition remain pending for more than a year, the petitioner and family members can obtain I-551 stamps from a local USCIS district office through an InfoPass appointment.
The investor and dependents need not be in the United States at the time the I-829 petition is filed, but they will be required to attend a biometrics appointment at a USCIS application support center approximately 30 to 60 days after the I-829 petition is filed so travel will need to be coordinated accordingly. Biometrics processing reveals any arrests or convictions. The ramifications of any arrests or convictions should be closely analyzed by the investor’s immigration counsel to determine whether an incident could trigger removal (deportation) proceedings. If there are pending charges, USCIS will likely withhold approval of the I-829 petition until a final adjudication has been made in the criminal proceedings.
USCIS, also, in some cases has reviewed the travel records of an investor as part of the I-829 petition review, and probed the extensive absences outside of the United States to determine whether the investor has abandoned resident status.
There are essentially three requirements for adjudication of the I-829 petition for removal of conditions — investment of capital, sustained investment, and job creation. These requirements will be addressed in turn.
Investment of Capital
Both the statute and regulations governing I-829 petitions require evidence that the EB-5 investor has “invested or was actively in the process of investing the requisite capital” in the NCE. However, practically speaking, USCIS expects that all of the requisite capital has been invested in the NCE. Documentation reflecting that the EB-5 investor has completed the investment typically includes similar evidence that was submitted in the underlying I-526 petition, i.e., the investor’s personal bank statement reflecting a withdrawal of funds directed to the NCE, and the NCE’s bank statement reflecting a corresponding deposit from the investor. If an escrow was used to initially hold the investor’ EB-5 capital pending the fulfillment of certain conditions prior to release of funds to the NCE (e.g., approval of the I-526 petition), bank documentation should also be presented to reflect that each investor’s EB-5 capital was in fact released from the escrow account to the NCE’s account.
Given the need for biometrics in all cases, attention must be given to the possibility that USCIS could probe whether arrests or convictions relate to the investor’s source of funds. USCIS may revisit an investor’s source of funds if the agency receives “derogatory information” following the approval of the I-526 petition. A request for evidence (“RFE”) would question whether the investment capital was actually derived from unlawful sources.
The statute and regulations also require evidence that the investor has sustained the investment in the NCE. This requirement focuses on the investor sustaining the investment as well as the sustaining of the business of the NCE.
The investor cannot withdraw any part of the minimum threshold EB-5 capital contribution from the NCE during the conditional resident period. This prohibition does not disallow distributions representing profits. With partnership accounting, the Form K-1 proves useful to indicate the EB-5 investor’s capital account has been sustained at the minimum level. If the capital account has dropped below the required level due to non-cash expenses such as depreciation, an accountant’s letter helps to explain that the EB-5 investor has not withdrawn any part of the required capital.
The I-829 also should demonstrate that the NCE is an ongoing enterprise. As a start, the I-829 should include documents verifying that the NCE continues to operate, e.g., income tax returns, financial statements, and/or recent bank statements. Additional evidence would depend on the particular facts of the NCE. As an example, if the NCE was formed for the purpose of developing and operating a hotel, the I-829 petition should include documents evidencing the expenditure of EB-5 capital towards the development of the hotel, and the status of the hotel’s construction and operations. In another common example, if the purpose of the NCE was to raise EB-5 capital that in turn was loaned to a third party (“Borrower”), the I-829 petition should include documentation of the release of loan proceeds and of the Borrower’s expenditures. Notably, USCIS has not provided guidance on how it views the Borrower’s prepayment of a loan to the NCE, or on whether in the circumstances the NCE should re-deploy the repaid proceeds during the EB-5 investor’s conditional residence. This lack of guidance is especially troubling in view of the U.S. State Department’s dire predictions of visa retrogression for Chinese nationals, which among other consequences will stretch the overall timeframe for the NCE to manage the EB-5 process.
From approximately December 2009 to May 2013 (the dates of EB-5 adjudication guidance memos issued by USCIS), any “material change” from the initial Comprehensive Business Plan of the NCE would result in the denial of the I-829 petition and would require the EB-5 investor to start the process anew with the filing of a new I-526 petition. Fortunately, USCIS adopted a more flexible view on business changes in its Policy Memorandum of May 30, 2013. As for now, USCIS authorizes approval of an I-829 petition irrespective of a change from the initial Comprehensive Business Plan, so long as the material change occurs after the EB-5 investor has obtained conditional permanent residences, and the I-829 petition meets all other adjudication requirements including sufficient job creation.
USCIS interprets the EB-5 law to require proof in all I-829 adjudications that jobs have been created or will be created within a reasonable period of time. This task of documentation may be complicated for NCEs with multiple EB-5 investors who “consume” ten EB-5 created jobs every time USCIS approves an I-829 petition. Consequently, it is of paramount first importance that the regional center carefully track the conditional residence period and I-829 petition filing windows for all of its EB-5 investors.
Second, as part of its review and preparation for the I-829 petition, the regional center should review the job credit allocation agreement among the EB-5 investors in the NCE, set a timeline to monitor the number of jobs that must be created for each investor by a particular date, and develop a strategy that will support specific investors depending on where they are in line to receive job creation credit.
Third, in documenting job creation, the regional center will need to revisit the job impacts analysis that supported the I-526 petition approval, and prepare the evidence that shows the assumptions underlying the job impacts analysis have been realized.
It is imperative that the regional center obtain and organize these documents well in advance of the first I-829 filing deadline in order to avoid any delays for its EB-5 investors who require a prompt filing in order to obtain the notices that extend status and approve travel. Also, advance planning is required to develop strategies for addressing any problem areas.
Examples of specific items of proof depend on the type of job creation. Construction phase jobs are created as construction funding is expended, so the I-829 petition should include evidence of these capital expenditures. Evidence can include a current construction budget detailing line item expenditures, sample invoices, construction draws, certification from the developer confirming capital expenditures, and documents showing the project has been completed or is near completion.
Proof of operations phase jobs will depend upon the inputs that were used in the economist’s analysis to estimate job creation. For example, where revenues were relied upon, verification should include the job creating entity (“JCE”) income tax returns if possible and financial statements. For tenant occupancy, evidence could include executed lease agreements, tenant affidavits regarding the type of business and number of employees at the leased space, and ongoing marketing efforts to attract tenants. Where the number of on-site workers is the input to the economist’s analysis, payroll records and I-9 forms can verify the presence of on-site workers.
Following business realities, it is not uncommon that the assumptions underlying the job impacts analysis fail to transpire in accordance with the original timeline due to construction delays or lower leasing levels. USCIS tracks the number of jobs it deems to have been created by a particular NCE and the number of I-829 petitions that have been approved for investors in that NCE. It will issue RFEs to the EB-5 investors who are up for adjudication after the job creation capacity of the NCE has been filled. Success in those I-829 cases will depend on documenting the amount of jobs already created and the additional jobs that will be created within reasonably identifiable timeframes, such as within a particular quarter. Where, for example, the NCE funded the development of a hotel it is possible to qualify most of the EB-5 investors for removal of conditions based on the construction expenditures alone, without having to document the operations phase jobs. On the other hand, EB-5 investors who are at the end of the line for job creation credit purposes may be entirely dependent on documentation of the performance of the hotel in terms of operating revenues.
Where jobs have not yet been created as of the date of the I-829 adjudication, the petitioner must argue that the jobs will occur by a certain date which amounts to “within a reasonable period of time.” The Policy Memo sets the outer limit of this timeframe as three years following the initial conditional permanent residence date. Because EB-5 investors in a particular NCE generally immigrate over a protracted period of at least 1 to 2 years, which could be further distended due visa retrogression, the three year deadline will differ from one investor to the next. The strategy and supporting evidence, consequently, needs to be adjusted for different groups of investors depending upon the window for I-829 petition filing and the evidence of job creation that then is available.
Options if I-829 petition is denied
Unfortunately, there is no extreme hardship or good faith waiver for EB-5 investors who fail to meet the requirements for removal of conditions. Also there is no administrative appeal available for a denied I-829 petition. Routinely, USCIS now encloses with the I-829 denial a “Notice to Appear” thereby vesting jurisdiction with the immigration court. The government bears the burden by a preponderance of the evidence to prove to the immigration judge that the I-829 petition should be denied. The mere submission by the government of the USCIS denial of the I-829 petition is not sufficient in immigration court; the USCIS denial signals only that the petitioner did not meet the burden of proof before USCIS. Although the law in this area is less than clear, the EB-5 investor should be able to present in immigration court evidence of subsequent events, such as additional job creation. The immigration judge has the authority to remove the conditions on the investor’s residence, or alternatively to deny the I-829 petition again and order the deportation of the investor and family.
When a regional center assists the immigrant investor to reach the end zone with an approval of the I-829 petition, a family’s immigration dream of unconditional permanent residence is realized. It shows that the regional center serves the primary motivation of its EB-5 investors. The regional center notches another victory for its own organization, a feat that strikes a harmonious chord when promoting to prospective EB-5 investors.
*Elsie Hui Arias (firstname.lastname@example.org) is a partner of Stone Grzegorek & Gonzalez LLP, in Los Angeles, and is certified as a specialist in immigration and nationality law by the California State Bar.
RCBJ Retrospective articles are reprinted from IIUSA’s Regional Center Business Journal trade magazine. Opinions expressed within these articles do not necessarily represent the views of IIUSA and are provided for educational purposes.
2015 Adopted Resolution
The U.S. Conference of Mayors
83rd Annual Meeting
June 19-22, 2015
(View All Adopted Resolutions Here)
EB-5 Immigrant Investor Program
WHEREAS, EB-5 is the designation for the fifth employment-based preference immigrant visa category established by Congress in 1990; and
WHEREAS, Congress established the Immigrant Investor Pilot Program in 1992 to create Regional Centers which aid foreign investors, by directing and professionally managing their investments while concentrating pooled investments in defined distressed economic zones; and
WHEREAS, EB-5 allocates 10,000 visas annually to foreign investors and their families who invest at least $1 million (or $500,000 in a target employment area) which must generate at least 10 jobs; and
WHEREAS, EB-5 has become a vital source of urban redevelopment funds; and
WHEREAS, since 2008 over $8.6 billion has been invested in qualified American projects; and
WHEREAS, that investment has supported over 171,000 American jobs; and
WHEREAS, over 200 additional regional centers were approved in Fiscal Year 2014 alone; and
WHEREAS, currently there are over 13,000 pending applications for EB-5 related visas, representing $6.5 billion in potential direct investment and 130,000 jobs; and
WHEREAS, the EB-5 Program had record-breaking capital formation in FY2014 and Q1-2015 with $2.5+ billion and $826 million in foreign direct investment respectively; and
WHEREAS, in 2012 Congress passed legislation to reauthorize the Regional Center Program, with a unanimous vote in the Senate and a vote of 412-3 in the House; and
WHEREAS, mayors are working with private parties to use EB-5 foreign direct investment to finance job creating projects and downtown revitalization projects; and
WHEREAS, without Congressional action the EB-5 Program will sunset on September 30, 2015; and
NOW, THEREFORE, BE IT RESOLVED, that The United States Conference of Mayors urges Congress to include a robust EB-5 Program through legislation including additional visas, ensuring that any reform of the EB-5 Program maintains the ability to deliver job-creating capital to urban areas, permanent authorization of the Regional Center Program, and streamlined approvals for all applications.
Projected Cost: None
USCIS Publishes “Talking Points” From June 4th EB-5 Interactive Series on Expenses that are Includable (or excludable) for Job Creation
This week, U.S. Citizenship and Immigration Services (USCIS) published talking points from the June 4th EB-5 Interactive Series Engagement on Expenses that are Includable (or Excludable) for Job Creation.
On the call, economists from the USCIS Immigrant Investor Program Office (IPO) gave a short presentation and the answered a number of non-case specific stakeholder questions concerning this topic.
If you’d like to listen to the recording, please click here.
To review the published talking points in PDF, click here or read below:
- As USCIS has stated in policy memos, due to the nature of accepted job creation modeling practices, which do not distinguish between full- or part-time jobs, USCIS relies upon the reasonable economic methodologies to determine whether, more likely than not, the indirect jobs were created.
- USCIS will not request additional evidence to validate to a greater level of certainty that the indirect jobs are full-time or permanent.
- USCIS may, however, request additional evidence to verify that the direct jobs are, or will be, full-time and permanent. This request may include a review of W-2s or similar evidence at the Form I-829 stage.
- For example, a stock market transaction that involves the exchange of two paper assets (i.e., money for shares of stock) creates no economic impact. Similarly, there are some transactional costs, such as brokerage fees for services related to the transfer payment transaction, that may not be eligible. Most petitioners do not request job creation from these categories.
- With respect to land purchases, there are some closing costs that may be eligible; however, the actual purchase of a title from the previous land owner does not create any economic activity, and is thus ineligible. Some transactional costs, such as realtor and title policy expenses, appraisals, site inspections and site clean-up, may be ineligible if they were incurred before the immigrant investor capital was placed at risk.
- USCIS has determined that legal fees related to complying with the EB-5 program or counseling immigrant investor clients are not permissible as inputs. However, legal fees related to counseling a business enterprise in the normal course of complying with local regulations, tax laws, employment laws and so forth are permissible as inputs.
- For regional center affiliated projects, eligible legal expenditures are permissible as an input into an economic model. The important thing to note here is that the input should be transparent, clarifying that only those legal costs not associated with EB-5 compliance are included