This is a member perspective and the views of the author are their own and do not necessarily reflect the views or position of IIUSA.
By Mona Shah, Esq. and Rebecca S. Singh, Esq.
After laboring through a long-awaited U.S. Citizenship and Immigration Services (“USCIS”) engagement that promised much but delivered little, irked EB-5 practitioners have arrived at a consensus that may be expressed in just two words: big whoop.
The one-and-a-half-hour virtual event—which USCIS had rescheduled to this past Tuesday from March 20 for an undisclosed reason—aimed to cover three distinct facets of the EB-5 process that have been the topic of much discussion: direct and third-party promoters; the investment period (including sustainment); and regional center operations. In theory, this plan appeared to be a good way to elicit further discussion among stakeholders and agency officials. USCIS even stated that it would entertain “feedback” on other subjects pertaining to EB-5, though the agency’s preference was to stick to the agenda.
Sadly, practitioners’ cautious optimism about the event fizzled out at the start. Less of a townhall and more of a surreal “EB-5 101” seminar, the Orwellian engagement continually frustrated stakeholders’ efforts to garner clarification on pressing issues relating to the aforementioned topics—with pat, seemingly rehearsed responses supplied by a small group of USCIS officials addressing mostly softball questions on video. Some of these officials appeared to be reading directly from other sources when answering inquiries.
“The agency scored an own goal by ignoring the most critical questions pervading the industry.”
“USCIS had an excellent opportunity to augment EB-5 practitioners’ understanding of areas where guidance on confusing mandates had been minimal or nonexistent,” said Mona Shah, Esq., Managing Partner of Mona Shah and Associates Global (“MSA Global”). “Unfortunately, the agency scored an own goal by ignoring the most critical questions pervading the industry. With practitioners left in the dark, USCIS will continue to maintain inefficiencies via mounting delays, requests for evidence, and other problems resulting from unclear requirements.”
An additional irritant was the format: Attendees were not given the chance to speak, as they were during previous sessions, and there was no back-and-forth dialogue among agency staffers and registrants. Furthermore, aside from the “featured question,” inquiries posed in the chat were not visible, so no one could see what had been asked previously. Consequently, registrants could not determine whether their questions were redundant. In addition, it appeared that the agency cherry-picked questions, of which many received disappointingly basic responses. The sophistication of the EB-5 audience did not appear to be a factor with the agency. The disappointment within the industry, on the other hand, was palpable.
The disappointment within the industry was palpable.
Making the discussion more perplexing was the fact that the agency did not address many crucial questions. One such inquiry was about whether USCIS will adjust the two-year sustainment requirement for immigrant investors to more accurately reflect business realities. Specifically, because projects usually take three to five years to become profitable, it is unrealistic to expect redeployment of funds in so short an amount of time. So if the agency provided clarification on this, it would have been extremely helpful.
Yet it didn’t. Instead, USCIS officials—including Alissa Emmel, Chief of the Immigrant Investor Program (“IPO”); Nadine Tushe, Compliance Division, IPO; and Kevin Muck, Division Chief of IPO Division 2, I-526—frequently skirted some of the most burning questions to cover information that already had been answered … including on the agency’s own website.
“Reiterating information that eB-5 practitioners already know aids no one and adds to the confusion,” remarked Shah. “It would have been much more beneficial if USCIS had carefully scrutinized the most important questions from stakeholders beforehand, as well as during the event, to ascertain which ones should be prioritized.”
In keeping their chosen questions and answers simple, USCIS gave no justice to the depth of knowledge and understanding that EB-5 stakeholders have. Real, challenging questions were submitted, but the agency’s apparent unwillingness to field them makes them seem hesitant, if not afraid, to hear what stakeholders have to say.
An Angry Reaction
Some stakeholders were even more critical. Business writer and EB-5 expert Suzanne Lazicki, Owner of Lucid Professional Writing, noted in her blog that the event “managed to fill 1.5 hours with exactly no significant content” and called the speakers “ clueless and incompetent”—adding that they “provided no update on IPO operations or staffing, no update on form processing or procedures, and no estimated delivery dates for the many initiatives.”
Lazicki went further in an open letter to Muck, where she referenced a question on “reporting I-526/I-526E receipt data by TEA category/country, for the purpose of monitoring and avoiding backlogs in the new TEA categories.” Observing that he “responded that stakeholders should consult the Visa Bulletin, and see that the current Visa Bulletin reports TEA categories as ‘current,’” she presented a telling reply.
“Think about it, Kevin,” Lazicki wrote. “Do EB-5 backlogs not exist until they appear at the visa stage/in the visa bulletin? Do you believe that someone filing I-526E today gets visa availability based on the dates in today’s Visa Bulletin?”
In addition, Lazicki brought up a scenario seemingly opened up by USCIS: that the investment incentives touted by the agency might be deemed fraud. “When the U.S. government offers an investor visa incentive, at the same time making it impossible for the investor or issuers to estimate visa availability at the time of investment, I’d call that fraud by the government,” she wrote. “It rests on IPO to keep the U.S. government out of such embarrassment by reporting on the I-526 filings that drive EB-5 visa demand and availability.”
Such a situation could conceivably lead to litigation against USCIS. So why hasn’t the office taken steps to provide the necessary clarification?