The American Immigration Lawyers Association’s (AILA) EB-5 Investor Committee sent a letter this week to U.S. Citizenship & Immigration Services (USCIS) asking for clarification on the revised policies required to implement the Temporary Injunction Order issued by federal court on June 24, 2022 in the case of Behring Regional Center LLC v. Mayorkas (Case 3:22-cv-02487-VC).
The three-page letter asks important and urgent questions for the industry for how USCIS will implement the preliminary injunction and when it plans to update its website information and how it will accept and adjudicate EB-5-related forms, amongst other items. The full list of questions are below as well as the full letter.
IIUSA looks forward to continuing to work with AILA to seek meaningful engagement with USCIS and to answer many of the industry’s pressing questions.
Questions to USCIS from AILA EB-5 Committee:
1. When will USCIS update its web site to reflect implementation of the preliminary injunction?
2. Is the Form I-956F required for “exemplars” approved before RIA’s enactment given that the new Section 203(b)(5)(F)(ii) states the “approval of an application under this subparagraph, including approval before the date of the enactment of this subparagraph, shall be binding”.
3. Is USCIS immediately accepting Form I-956F supplements for project pre-approval applications?
4. RIA section 103(b)(1) creating the new INA Section 203(b)(5)(E)(ii)(III) states USCIS “(III) shall deem such petitions [I-526 petitions] to include records previously filed with the Secretary pursuant to subparagraph (F) if the alien petitioner certifies that such records are incorporated by reference into the alien’s petition.” The Form I-526 instructions, however, enumerate a list of evidence to accompany the petition that are redundant in that the same evidence is also required to be included in the regional center business plan pursuant to subparagraph (F). The list includes, for example, Job Creation evidence, but filings under subparagraph (F) are required to contain a comprehensive business plan and economic analysis to establish job creation.
Please confirm that by investor certification that the records previously submitted with the Secretary pursuant to subparagraph (F), the petition will be deemed to include the evidence also listed on the Form I-526 instructions. The contrary would defeat the purpose of such certifications, as I-526s would still need to include all the documents in I-956F. It is understood that filings under subparagraph (F) will not include evidence of lawful capital invested by investors; accordingly, investors must continue to provide, of course, lawful source of funds documentation.
5. Please instruct on what evidence is required to show that a regional center has fulfilled the new INA Section 203(b)(5)(F)(i) requirement that “a regional center shall file an application” under subparagraph (F) “before any alien files a petition for classification”. Stakeholders are concerned about delays in USCIS issuing receipts of the Form I-956F. Will USCIS accept proof of Form I-956F delivery to USCIS to allow investors to file petitions for classification, or will a formal I-956F receipt be required? If the latter, please confirm that these will be promptly issued.
