Back in November 2011, USCIS published the first draft of their EB-5 Adjudications Policy Memorandum for public comment. IIUSA submitted their comments in response to the first draft of the Memo. The second draft of the adjudications memo was released by USCIS in January 2012, in conjunction with the “Conversation with Director Mayorkas” event. No comments were submitted by IIUSA in response to the second draft due to pronouncement by Director Mayorkas that a third draft was imminent. This past February, over a year after the release of the second draft of the Memo a third draft was finally released, which IIUSA Vice President Robert C. Divine wrote an “issue spotting” article on, titled: “New Draft EB-5 Policy Memo from USCIS: What’s Really New, and What’s Left Undone”.
On Monday (4/1), IIUSA submitted formal comments to USCIS on its third draft of the memo, urging prompt implementation since it has been in draft form since November 2011 – over 15 months. IIUSA stated a “consolidation of EB-5 adjudications policy into one comprehensive memorandum is an important step forward in achieving the goal of maximizing the Program’s economic impact”. Furthermore, IIUSA advocated the following recommendations to USCIS before finalizing the implementation of the memo:
- Including language from previous agency interpretation on crediting construction jobs and/or the resulting indirect/induced economic impact to EB-5 investors;
- Including language from previous agency interpretation on crediting indirect jobs created outside of a Regional Center’s boundaries;
- Including language from previous agency interpretation on “Tenant Occupancy” economic model guidance;
- Including language from previous agency interpretation on “Visitors Spending” economic input;
- Establishing clear and commercially reasonable guidelines on the definition of material change/initial business plans;
- State specifically that bridge financing can be an approvable use of EB-5 capital;
- Bar foreign ownership of Regional Centers;
- Allow North American Industry Classification System (NAICS) codes of two digits and/or longer to be approved for a Regional Center’s particular industry sector;
- Specifically state which existing administrative memoranda will be rescinded after the Memo is implemented ;
- Limit the number of RFE’s issued to one per Regional Center business plan and/or economic model; and,
- Issue an I-797 approval notice for I-924 amendment applications for “actual” projects seeking pre-approval.
IIUSA will continue to work closely with USCIS towards effectuating clear policy implementation and timely adjudications so that the Program can maximize its intended economic impact in the U.S.
Thank you to the IIUSA Legislative Committee for their work on this!