By Carolyn Lee, Partner, Miller Mayer LLP
As announced in numerous USCIS stakeholder calls over the last two years, USCIS has begun site visits to supplement its EB-5 adjudications.
WHAT WE KNOW NOW
The below summarizes what we know so far:
- Site visits are at the job creating entity (JCE) site, not the regional center or new commercial enterprise site.
- Site visits are unannounced.
- Site visits appear to be in connection with Form I-829 adjudication, not I-924 or I-526 adjudication. Regional center compliance audits, on the other hand, may take place at any time.
- FDNS officer creates a Compliance Review Report after the inquiry, which becomes a part of the record.
- Site inspectors verify information in the petition and existence of the business(es).
- Site inspectors take photographs and interview personnel at the site.
- Site visits are conducted by Fraud Detection and National Security (FDNS) directorate, not by Investor Program Office (IPO), itself.
- Site visits are part of a larger USCIS verification program aimed at sites employing religious workers, H-1B workers, and L-1 workers.
Based on recent experience, site inspectors appear to be familiar with the project record. Here are some sample questions asked in connection with a recent site visit:
- “How are EB-5 funds being put to use?”
- “How much EB-5 has been drawn and used by the company?”
- “How are jobs being created?”
- “How many workers are on site?”
- “What is the business of the company? How many employees does the company have?
- “How many facilities are in the U.S.?”
It’s evident that the site inspectors are focused on job creation and actual employees. This can be a problem if the inquiry is not redirected toward the indirect jobs associated with the project. Note also that the inquiry extends to the JCE’s core business, not just the EB-5 project. So if the JCE’s headquarters is elsewhere as it usually is, the same questions about employees may be asked of the JCE’s main business.
PROBLEMS WITH EB-5 SITE VISITS
USCIS site inspectors are accustomed to visiting named employers on a worker petition. The inspected business therefore knows or should know that it is on record with USCIS and that USCIS may conduct a site visit.
In the EB-5 context, however, the project site business or businesses may have no idea that any EB-5 capital was used, or even know what EB-5 is. Consider a large scale construction project involving an office tower and retail on the ground floor. USCIS site inspector arrives and begins questioning retail and office tenants with questions like the above. The tenants have no idea why they’re being asked these questions and would understandably be alarmed or at minimum, confused, about why they are being asked these questions. They would also not know whether they were required to answer the questions, and how best to answer if they even have knowledge enough to answer. Consider these questions being put to a cashier at a retail clothing store.
Other problems center around project site location. A greenfield project’s only “address” may be a census tract. If a site inspector is unsuccessful in finding the location, one imagines what Compliance Review Report might say: “Project site not found,” “Project site unverifiable,” or perhaps even “Project site nonexistent.”