On August 23, 2020, ahead of the submission deadline, IIUSA submitted comments to U.S. Citizenship & Immigration Services (USCIS) about the July 24, 2020 Policy Manual Update: Vol. 6, Part G, Chapters 2 and 4 – Clarifying Guidance for Deployment of Capital in Employment Based Fifth Preference (EB-5) Category.
IIUSA worked closely with the American Immigration Lawyers Association’s (AILA) EB-5 Committee to draft our comments and we are extremely grateful to AILA for their time, dedication and legal expertise that ensured our comments are grounded by legal arguments. IIUSA provided comments that specifically address the practical impact and implications that these changes have on current and future projects in the redeployment phase.
IIUSA and AILA decided to send joint comments– each organization submitted identical letters to USCIS on their respective letterheads, signifying unity and the gravity of this update.
Continue to Submit Feeback to USCIS
The official due date for comments to the redeployment Policy Manual update was before August 24, 2020. However, according to the USCIS website, the public “can submit feedback on the USCIS Policy Manual at any time”. If you missed sending your comments, or if you want to encourage your EB-5 stakeholders to
send comments, feedback can still be sent to USCISPolicyManual@uscis.dhs.gov.
The full letter of comments can be viewed here, but below is a summary of the points and concerns addressed in the comments:
1) Background of pre-existing guidance on redeployment
2) Adverse effects of what USCIS called “minimal” impacts due to recent update and who it harms
- EB-5 investors with pending petitions that have already made redeployment investments
- EB-5 investors with pending petitions where the NCE was in the process of redeploying at the time of the July 2020 update
- EB-5 investors with redeployments going forward
3) Impermissible retroactive application of new guidance to pending cases
- New restrictions on capital redeployment represent an abrupt departure from previous guidance
- Regional Centers and EB-5 investors relied heavily on prior guidance which omitted the new restrictions USCIS now seeks to impose
- Retroactive application threatens an extraordinary toll on EB-5 investors who relied on USCIS’s prior policy
- USCIS can claim no significant statutory interest in retroactive application of its new restrictions
4) New USCIS rules violate Executive Order 13892 on Fairness and Surprise
5) Deployment of capital after job creation is satisfied
- Redeployment in the same NCE
- Redeployment in the same Regional Center and geographic area
6) Deployment of capital before job creation is satisfied
7) Unclear and confusing directives of USCIS’s Questions and Answers: EB-5 Further Deployment