By: Ignacio Donoso, Managing Partner, Donoso & Partners
Introduction
The EB-5 Reform and Integrity Act of 2022 (“RIA”) enacted on March 15, 2022, introduced important changes to the EB-5 Regional Center Program (“EB-5 Program”). Among the improvements introduced by the RIA were several provisions intended to offer faster processing to EB-5 investors.
The RIA included precise mechanisms for improving the processing of initial petitions for EB-5 classification of investors, now referred to as Form I-526E Immigrant Petition by Regional Center Investor (“Form I-526E petitions”). These expressly include a system for project-level approvals and the duty of U.S. Citizenship and Immigration Services (“USCIS”) to “prioritize” processing of I-526E petitions based on investments in rural areas. The RIA also includes ambitious goals for future visa processing timelines across all applications and petitions associated with the EB-5 Program under Section 106 of the RIA, aptly titled “Timely Processing,” and requires USCIS to prepare and deliver to Congress a study of USCIS filing fees and fee adjustments that may be necessary to issue decisions within 90 to 240 days after receiving an application or petition.
In contrast to the specific provisions related to faster processing of Form I-526E petitions, the RIA only makes reference in Section 106, which is non-binding, to faster processing for the I-829 to remove an investor’s conditions on lawful permanent residence.
The challenge is that the RIA does not set out specific mechanisms by which USCIS can achieve the processing goals set out in Section 106. Unfortunately, a clear path forward for reducing I-829 processing times is sorely needed. At present, average USCIS processing time for I-829 processes has grown to approximately 61.5 months (over 5 years) according to USCIS data.
This article proposes such a program-wide solution: USCIS should use its regulatory authority to create a project-level approval process for new commercial enterprises sponsored by Regional Centers to obtain USCIS approval of the business plan and job-creation elements of a capital investment project for I-829 petitions. Our proposal seeks to mirror the I-956F Application for Approval of an Investment. The benefits of such a system include: (a) faster processing of I-829 petitions; (b) paperwork reduction, and (c) for a streamlined procedure for USCIS to deal efficiently with project-level questions relating to execution of regional center sponsored new commercial enterprise business plans and related job-creation elements, which frequently are outside the control of individual I-829 petitions.
