Apr
15

IIUSA Submits Questions in Advance of 4/22 USCIS EB-5 Stakeholder Engagement

Invest In the USA (IIUSA), the industry trade association for the EB-5 Regional Center Program (the “Program”), with over 260 Regional Center members that account for well over 95% of the capital flowing through the Program, recently submitted a list of 17 questions to the U.S. Citizenship and Immigration Services Office of Public Engagement in advance of the April 22nd EB-5 Stakeholder Engagement.

This engagement is part of ongoing efforts by the USCIS EB-5 Immigrant Investor Program Office (IPO) to enhance dialogue with EB-5 stakeholders. During the first part of the engagement, USCIS will provide EB-5 program updates. The second part will be a question-and-answer session.
See below for the full list of questions proposed by IIUSA. To view the questions in PDF format, click here.

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?

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

7. What is the plan to address the backlog of over 13,000 I-526 petitions?

8. Does USCIS operate in teams by Regional Center for adjudication purposes? In other words, do you have the same adjudications team and economists review I-526 petitions filed through a particular Regional Center?

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

10. To what extent does USCIS share information with other agencies, particularly the SEC, Commerce, Treasury, and other relevant federal agencies? 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?

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

12. How often is the “Special Review Board being utilized?

13. 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?

14. How many Notices of Intent to Terminate (NOITs) have been issued this fiscal year to date?

Policy
15. 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.

16. Is it ever OK for Regional Centers or other stakeholders to utilize the USCIS logo? If so, what are those circumstances and what are the consequences for inappropriate use?

17. When will draft guidance on policy issues that arise from EB-5 visa retrogression going to be made available for public comment?
Apr
09

RCBJ Retrospective: 2014 USCIS EB-5 Adjudicator Training Materials


suzannel2014 USCIS EB-5 Adjudicator Training Materials (Vol. 2, Issue 4, December 2014, Pgs. 36-37)

By Suzanne Lazicki, Lucid Professional Writing

What do we have?

Through a Freedom of Information Act (FOIA) request, IIUSA has obtained copies of materials used in a training program for new personnel at the USCIS Investor Program Office (IPO) in April 2014. The 502 pages of slide presentations and handouts introduce USCIS and the EB-5 program, describe and interpret statutory and regulatory requirements, and teach guidelines and procedures for file review.

What’s new?

The April 2014 materials indicate that USCIS has significantly revised and expanded its EB-5 training since 2011, the date of the last set of EB-5 training documents released via FOIA request.

  • Regional Center Adjudication: The 2014 training program has six modules plus a two-week practice period dedicated to Regional Center adjudications, as compared with four Regional
    Center-focused modules in 2011 and two in 2008. The 2014 presentations take care to distinguish how investment and job creation requirements apply in Regional Center cases and direct EB-5 cases.
  • Economist Training: While the 2011 EB-5 training program introduced a short session on economic analysis, the 2014 program devotes a full day to economist training. The materials for economist training define the role of economists in the adjudication process, explain typical Regional Center investment structures, define business plan credibility, discuss economic model job verification, and describe how economic models and multipliers work. The training materials feature a template for economist due diligence review, including lists of questions to ask of Regional Center applications, business plans, and economic impact analysis. They also address issues related to expense eligibility, construction cost evidence, tenant occupancy, hotel visitor spending, and I-O model misuse.
  • Collaboration: The 2014 training materials reflect a commitment to interagency and intra-agency collaboration. The program begins with a day of presentations that describe the mission and organization of DHS and USCIS as background for the Investor Program Office, and that place EB-5 within the wider context of immigrant and non-immigrant visa programs. The presentations emphasize the importance of USCIS cooperation with Customs and Border Protection and Immigration and Customs Enforcement, as well as with strategic partners such as the State Department and FBI. Collaboration within the Investor Program Office is encouraged through an information sharing intranet. This “Electronic Com-munications Network” allows employees to search for documents and ask and answer questions such as “What is the dress code policy?” (FAQ section), “What organization has authority to designate TEAs for a given state?” (TEA Designation Letters section), “Where can I find previously approved exemplar documents associated with my petition?” (Exemplar Organizational Documents section), and “Where can I find the documents and decision and adjudicator associated with a given case number?” (Case Adjudication Section). This intranet apparently makes case information readily available to all staff and facilitates knowledge-sharing among employees.
  • Fraud Prevention: In describing each EB-5 requirement, the 2014 training materials take care to give examples of red flags and to instruct trainees on proper procedures for dealing with deficiencies, derogatory evidence, and signs of fraud.
  • Restraint: While encouraging vigilance, the 2014 training materials also emphasize that USCIS evaluation must be restrained by procedures and guidelines. The presentation on burden and standard of proof is placed early in the training program and significantly expanded from previous years. In subsequent presentations, descriptions of regulatory requirements and appropriate types of evidence are often followed by a reminder to trainees not to impose additional requirements (e.g. for source of funds) or demand unreasonable evidence (e.g. for legal employment) or exceed their mandate (e.g. assessing investment suitability). Trainees are instructed to adhere to the preponderance of the evidence standard and to follow defined procedures in the event that they identify a problem.
  • Practical Guidance and Guided Practice: The 2014 program includes more practical tips and practice sessions than evident in the training materials from previous years. The new materials contain less theoretical background than before (for example no in-depth presentations on the AAO precedent decisions or federal EB-5 cases) and more slides devoted to interpretation and practical application of regulatory requirements. The first two weeks focus on imparting information and teaching trainees what to do with that information, while the third and fourth weeks involve guided practice. The 2014 training program culminates in a case certification with a practical goal: “to have the AO trainee demonstrate a clear understanding of the underlying case eligibility issues and to render the appropriate decision/action.”

uscis training manual

ipochart

Click chart above to view

 

The April 2014 training materials obtained by IIUSA through the FOIA process represent only a subset of the on-going training activities at USCIS. In his May 2014 address at the IIUSA Advocacy Conference, IPO Chief Nicholas Colucci mentioned additional professional development activities and special courses on topics such as business organizations and documents, international banking and money laundering, and drafting clear and concise requests for evidence and decision letters. This training reflects Mr. Colucci’s commitment to build a foundation of knowledgeable staff and to strengthen the EB-5 program through improved performance and predictability.

The training materials are available in-full by accessing the USCIS resources tab within the IIUSA member portal (member.iiusa.org). ■

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.

 

Mar
31

USCIS Uploads 12/5/14 EB-5 Stakeholder Engagement Presentation Materials to USCIS.gov

As industry participants prepare for the upcoming EB-5 Stakeholder Engagement on April 22nd, U.S. Citizenship and Immigration Services (USCIS) uploaded several documents from the in-person stakeholder engagement from December 5, 2014.

This particular engagement provided some useful data and a few pieces of guidance for EB-5 stakeholders including comments from USCIS Director Leon Rodriguez, filing and adjudication data, staffing updates, processing methods, electronic filing, retrogression guidance, source of funds, Targeted Employment Areas (TEAs) and more. Read a full summary from IIUSA Vice President Robert C. Divine here and listen to the recording of the stakeholder engagement here.

Resources recently uploaded include:

Mar
25

U.S. Securities and Exchange Commission’s (SEC) Office of Investor Education and Advocacy Translates 2013 Joint EB-5 Investor Alert into Chinese (Simplified), Korean & Spanish

Recently, U.S. Securities and Exchange Commission’s (“SEC”) Office of Investor Education and Advocacy translated the October 2013 SEC/USCIS jointly issued investor alert into two three foreign languages: Chinese (View here), Korean (View Here) and Spanish (View Here).

On October 1, 2013 the U.S. Securities and Exchange Commission’s (“SEC”) Office of Investor Education and Advocacy and U.S. Citizenship and Immigration Services (“USCIS”) issued a joint investor alert containing 14 specific suggestions that investors can use to undertake due diligence on investment opportunities and affiliated partners to protect the safety of their investment and compliance with immigration and securities laws. You can read the investor alert here.

As the EB-5 Regional Center Industry’s trade association, it is IIUSA’s duty to maintain open and effective communication channels with governmental and regulatory authorities, such as the USCIS, SEC, Financial Industry Regulatory Authority (FINRA), and the North American Securities Administrators Association (NASAA), and relay information to our members and to the industry at large. Dissemination of information relating to investor education and safety, thanks to thorough due diligence, is key.

In February 2013, IIUSA published several blog posts relating to investment due diligence tools, resources and outreach from both the SEC and FINRA including information on the SEC-developed web portal investor.gov and Broker Check search tool, which allow investors to do background research on FINRA registered brokerage firms and finance professionals.

In March 2013, IIUSA posted about NASAA’s investor education tools to its website. NASAA, which is comprised of State Securities Regulators, is responsible for “licensing securities firms and investment professionals, such as broker-dealers and investment advisers, registering certain securities offerings, reviewing financial offerings of small companies, auditing branch office sales practices and record-keeping, promoting investor education, and most importantly, enforcing state securities laws. In addition to protecting investors, many state regulators also help small businesses raise money and comply with securities laws.”

Lastly, in June 2013, IIUSA’s Best Practices Committee recommended alist of best practices to provide guidance to the industry to promote business practices that will foster the growth and success of the EB-5 program. This list, comprising 38 points on matters from Regional Center Oversight, Securities Issues, Escrow, Agents/Marketing, Immigration attorneys and investors relations are meant to provide guidance to regional centers seeking to enhance their operations and provide protection to themselves, investors and other involved parties.

By providing this information to any and all investors through their various websites, the U.S. government is clearly sending a message to investors from all over the world that they are protected under U.S. securities laws, which exist to deter fraud and punish those who partake in it. It is the responsibility of the investor, however, to perform thorough due diligence on investment opportunities and affiliated business partners. Thanks to U.S. securities laws, and the outreach and resources of the SEC, FINRA and NASAA, the tools are not hard to find.

Combining this guidance with the recommendation provided by IIUSA’s hard working leadership, committees, and membership to promote ethically sound business practices, there is now a robust body of work with several layers for the industry to turn to for guidance.
Other important links provided by Investor.gov pertaining to SEC enforcement actions or investor alerts involving EB-5 include:

Mar
24

USCIS Announces EB-5 Immigrant Investor Program Stakeholder Engagement for Wednesday, April 22nd

U.S. Citizenship and Immigration Services (USCIS) invites you to participate in a stakeholder teleconference on Wednesday, April 22, from 1 to 3 p.m. (Eastern) to discuss the Immigrant Investor Program, also known as the EB-5 program. This engagement is part of our ongoing efforts to enhance dialogue with our stakeholders in the EB-5 program.
During the first part of this engagement, we will provide EB-5 program updates. The second part will be a question-and-answer session. We invite you to ask non-case specific questions or provide feedback on the EB-5 program.

To register for this session, please follow the steps below:
  • Visit the USCIS 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
  • Complete the questions and select “Submit”
Once USCIS processes your registration, you will receive a confirmation email with additional details.

To submit non-case specific 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 Public.Engagement@uscis.dhs.gov.
Mar
19

IIUSA Press Release: 2015 SelectUSA Investment Summit Academy to Feature Panel on Accessing EB-5 Capital



2015 SelectUSA Investment Summit Academy to Feature Panel on Accessing EB-5 Capital

IIUSA to participate on foreign direct investment and economic development panel to be held Sunday March 22nd


Washington DC (PRWEB) March 18, 2015

Invest in the USA (IIUSA), the national not-for-profit industry trade association for the EB-5 Regional Center Program (the “Program”), announces that Executive Director Peter D. Joseph will moderate a panel at the SelectUSA Investment Pre-Summit Academy on March 22nd at the National Harbor in Maryland. Mr. Joseph will be joined by IIUSA members Angelique Brunner of EB5 Capital and Brent Raymond of the State of Vermont EB-5 Regional Center for the panel “EB-5: How Does it Fit with FDI Development,” which will focus on educating economic development organizations (EDOs) on EB-5 best practices.

“IIUSA is honored to participate in this important pre-summit workshop and represent the EB-5 Regional Center industry with experienced EB-5 practitioners from both the public and private sector,” said IIUSA Executive Director Peter D. Joseph. “For many years, IIUSA has worked with SelectUSA to promote American job creation and enhance economic growth by encouraging and supporting foreign direct investment (FDI) in the United States through the EB-5 Program. I look forward to sharing valuable industry insights with economic development organizations on how EB-5 can be aligned with local economic development strategies to spur economic development via FDI. EB-5 capital has played a vital role in America’s recovery from the Great Recession. These at-risk investments have given projects across the country the ability to add bank financing and other outside investments to their capital stack – a key in post-recession capital markets for economic development projects that will help write the next chapter of local economies across the country,” Joseph said.

Housed within the U.S. Department of Commerce, SelectUSA is a government-wide program established in 2011 to promote and facilitate business investment into the United States in order to create jobs, spur economic growth, and advance U.S. competitiveness. According to a report released last year by the Executive Office of the President and the Department of Commerce, “SelectUSA has directly assisted in winning more than $18 billion in job-creating business investments for the United States in 17 different states and territories, and since October 2013, has assisted nearly 500 businesses, encouraging them to invest in the U.S. and helping them to navigate the Federal government.”

The SelectUSA Academy is an orientation for companies, state and local governments, and economic development organizations attending SelectUSA’s annual Investment Summit where participants will learn about the finer details of investment in the United States.

IIUSA has a strong track record of engaging with government entities like SelectUSA to educate stakeholders about the EB-5 program. Other organizations that IIUSA has worked with include the Council of Development Finance Agencies (CDFA), the National Association of State Securities Administrators (NASAA), the Securities and Exchange Commission (SEC), and U.S. Department of Commerce, staffs of several Governors, the U.S. Conference of Mayors (USCOM), and National Association of Counties (NACo).

To learn more about or register for the Academy and the Investment Summit, click here. To view the full conference agenda, click here (PDF).

Mar
17

New USCIS.gov Page Posted on EB-5 Evidence Tips

Last week, U.S. Citizenship and Immigration Services posted a new webpage to its the USCIS.gov site for the EB-5 Program on tips for evidencing source of funds documents. On February 26, USCIS held an EB-5 Stakeholder teleconference titled (listen here, read summary here).

Below are the contents of the new webpage:

  • Inconsistencies in documents: There may be legitimate reasons for inconsistencies. For example, the dimensions listed on pre-construction contracts for house purchases may vary from the actual dimensions shown on other documents. When submitting documents, providing explanations and evidence to reconcile inconsistencies will greatly reduce the chances of a Request for Evidence (RFE).
  • Unavailability of documents: Whenever possible, explain and provide evidence of the reason why a particular document is not available. For example, if claiming that proof of prior employment is unavailable because a company no longer exists, submit evidence that the company has been dissolved.
  • Probative value of evidence: “Probative value” refers to whether a document proves or supports a claim/eligibility requirement. So, for example, income tax returns from the government would have greater probative value and credibility than a letter from a family member or a friend as proof of income to show lawful source of funds.
  • Incomplete translations: USCIS requires complete English translations of all foreign language documents submitted as evidence. Ensuring that foreign language documents are translated in their entirety before submitting them will reduce the chances of an RFE or Request for Clarification.
Mar
16

Record Setting EB-5 Capital Formation Continues in Q1-2015

While IIUSA is merely weeks away from releasing its FY2013 Economic Impact Report of the EB-5 Regional Center Program, we would like to whet your appetite with some updated figures on minimum foreign direct investment (FDI) contributed by the EB-5 Program. In the first quarter of fiscal year 2015 (FY2015), the EB-5 Program contributed at least $826 million to the U.S. economy, the highest quarterly output in the Program’s history!

The minimum foreign direct investment figure is calculated by multiplying the number of approved I-526 petitions (according to data provided by U.S. Citizenship and Immigration Services) by the minimum EB-5 investment amount ($500,000). In Q1 2015, there were a total of 1,652 approvals, a growth of 50% from Q42014. To view the complete I-526 data report, click here.

 

Looking at EB-5 contributions of FDI year-over-year, FY2014 proved to be a high-water mark for the industry. In total, 5,115 I-526 petitions were approved which represents over 2.5 billion dollars in FDI.

 

To view the complete I-526 data report, click above (Members-Only)

 

Mar
11

USCIS Explains How to Deal with EB-5 Source of Funds Issues By Stephen Yale-Loehr

Stephen Yale-Loehr, President Emeritus, IIUSA; Of Counsel, Miller Mayer LLP

On February 26, 2015, the U.S. Citizenship and Immigration Services (USCIS) hosted a teleconference. USCIS labeled the call the first in a series of “Interactive” engagements designed to address adjudicative issues USCIS observes in reviewing EB-5 filings. This Interactive focused on how to deal with requests for evidence (RFEs) in EB-5 source of funds issues.

As background, every EB-5 investor must show that the money they are investing in the United States was lawfully obtained. There are a variety of ways to prove lawful source of funds. The key is good documentation showing both the source and path of the money* (see footnote).

Key points of focus in the “Interactive” discussion included the importance of third party documentation. Self-serving documents prepared by the petitioner or friends are not as credible as documents from third parties, such as governmental authorities and banks.

USCIS officials explained common EB-5 source of funds scenarios and how to document them. For example:

  • Earned income: The investor should present proof of their salary, employment certificates, affidavits from past employers, income tax records, and bank statements showing deposits over time. USCIS prefers objective evidence, such as bank statements, over statements from friends or relatives. If an employer writes a letter certifying that the investor works there, corroborate the letter with bank statements showing regular monthly deposits of the investor’s salary.
  • Investment proceeds: The investor should show: (1) that the money used to make the initial investment were obtained lawfully; (2) that the investor owned the investment; and (3) receipt of the capital from the investment proceeds. Bank statements and documents of the sale of the investment are key here.
  • Sale of property: The investor should show the lawful source of the money used to buy the property. The investor should include the purchase contract for the property, the ownership registration or deed, and tax receipts for property taxes paid on the property. Document the property sale and any taxes paid on the sale. If a mortgage has to be paid off as part of the property sale, include documentation of that payoff in the source of funds package.
  • Property loans: The investor should include documentation of the loan or mortgage contract, the notation of the lien on the ownership documents, evidence of the value of the property compared to the value of the loan, and any relevant bank records. The USCIS may question a loan document that doesn’t mention repayment terms, loan duration, or the property used as collateral for the loan. The investor must be personally liable to repay the loan.
  • Ownership in a company: The investor should show the lawful source of the money used to buy an ownership interest in the company.
  • Company loans: The investor must show that the company has enough assets to make the loan to the investor. If the investor is a shareholder, include financial audit reports, bank statements, etc. The investor should submit a copy of the shareholder meeting minutes documenting and approving the loan.
  • Gifts: The donor must show how they lawfully obtained the money to give the money to the investor. For example, if a parent earned money over years, the documentation described above concerning earned income would apply here to show that the parent lawfully earned the money to give it to his or her child to make an EB-5 investment.
The USCIS concluded the call with general tips for avoiding a source of funds RFE:

  • Explain any inconsistencies in the documents provided;
  • If a required document is unavailable, explain why;
  • Consider the probative value of evidence (i.e., evidence from an objective third party is better than evidence from the investor, his or her friends or family members, or his or employer); and
  • Provide full translations of foreign documents. Do not translate just part of a document.
Stephen Yale-Loehr (syl@millermayer.com) is co-author of Immigration Law and Procedure, the leading immigration law treatise, published by LexisNexis Matthew Bender. He also teaches immigration and asylum law at Cornell Law School, and is of counsel at Miller Mayer (www.millermayer.com) in Ithaca, NY. He founded the Invest In the USA (IIUSA) trade association to promote the EB-5 program and to liaise with Congress and the immigration agency. The IIUSA website is atwww.iiusa.org.
 

*See generally Charles Gordon, Stanley Mailman, Stephen Yale-Loehr & Ronald Y. Wada, Immigration Law and Procedure § 39.07 (rev. ed. 2015). For a general article about the source of funds requirement in EB-5 cases, see this link.

Mar
09

USCIS Online Created to Continue Discussion on Recent Stakeholder Engagement: EB-5 Interactive Series – Request for Evidence

 

USCIS Idea Community to Facilitate Further Discussion on Recent EB-5 Stakeholder Engagement

Last week, U.S. Citizenship and Immigration Services (USCIS) announced it has set up an online portal, called the USCIS Idea Community, for EB-5 Stakeholders to submit comments or questions, provide feedback, and continue the discussion from the February 26th EB-5 Interactive Series Engagement on Requests for Evidence on Lawful Source of Funds (listen here).  As of March 6th, there have been 60+ comments submitted.  The Idea Community will be active through March 13th.

Last year, USCIS set up its Idea Community for EB-5 Stakeholder comment after the April 23, 2014 EB-5 Stakeholder Engagement and to solicit input on potential regulatory changes to the EB-5 Program.

USCIS Announces Listening Session to Provide Feedback on Business-Focused Immigration Enhancements

U.S. Citizenship and Immigration Services (USCIS) invites all stakeholders to participate in a listening session on Thursday, March 19, from 2 to 3:30 p.m.(Eastern) to provide feedback on one area of the executive actions on immigration: business-focused immigration enhancements.

Under those actions, USCIS will work with other government agencies to modernize, improve and clarify immigrant and nonimmigrant visa programs to grow our economy and create jobs. During the listening session, USCIS officials will provide an overview of the new initiatives and seek your input on enhancements.

To register for this session, please follow these steps:
  • Visit the USCIS registration page
  • Enter your email address and select “Submit”
  • Select “Subscriber Preferences”
  • Select the “Event Registration” tab
  • Provide your full name and organization, if any
  • Complete the questions and select “Submit”

Once we process your registration, USCIS will send you a confirmation email with details about how to participate in the teleconference.

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