Suzanne Says: April 25, 2023 USCIS EB-5 Stakeholder Engagement

“Suzanne Says” is an opinion column on written by IIUSA Member Suzanne Lazicki. The views of the author are their own and do not necessarily reflect the views or position of IIUSA.

By Suzanne Lazicki

The April 25, 2023 “EB-5 Stakeholder Engagement” had a Microsoft Teams webinar format, with IPO staff speaking on video and a chat box where the public had a chance to type questions viewable to admins only. I cannot disprove the hypothesis that all of us were sitting there watching pre-recorded video, and typing questions into the void.

The engagement managed to fill 1.5 hours with exactly no significant content. I won’t publish a recording. The meeting was 95% technical clarifications on Form I-956K – the regional center promoter registration form that functions to feed paper to the black vaults of USCIS, which neither adjudicates the form nor (at least so far) makes it actionable by divulging form compliance or non-compliance to prospective/current investors or regional centers. If USCIS cares about Form I-956K and the additional instructions and technical clarifications that they provided on today’s call, then they can publish said instructions and clarifications somewhere findable by the public.  USCIS announced that no transcript or talking points would be provided for today’s call. I will not waste time transcribing information that USCIS apparently does not consider reliable enough to record or publish themselves.

Alissa Emmel kicked off today’s engagement by announcing that speakers would not address two significant issues that the engagement was called in January 2023 to address: the critical questions of investment period (“the new requirement under the EB-5 Reform and Integrity Act of 2022 (RIA) that capital must be expected to remain invested for at least two years”) and regional center operations (“in particular those who wish to withdraw from the program and terminate their status and those who do not wish to solicit investments for new projects under the RIA”).  Both of these issues are hugely consequential. USCIS’s answer on the investment period will make the difference between whether Chinese, Indians, and Vietnamese who risk an EB-5 investment today can expect to exit the investment after as little as two years (the artificial sustainment period apparently in the Reform and Integrity Act) or as long as over a decade (the time it could take investors to reach the I-829 stage considering current processing time/volume trends and the visa backlog risk in categories with small per-country visa availability under TEA percentages and country caps). Regional centers who love the profits of redeployment and investors who hate the risks of redeployment both snowed USCIS in conflicting passionate feedback on this topic. (For example see IIUSA’s letter here, the joint industry letter here, and AIIA’s letter here.) I’m guessing that USCIS first delayed the stakeholder meeting (originally scheduled for March) and then finally avoided the topic today because they’re rationally afraid that whatever they say about the investment sustainment period will immediately occasion a lawsuit. The Regional Center operations questions are less divisive among EB-5 stakeholders, but a huge open question with USCIS. Are thousands of good faith investors about to start seeing their I-526 and I-829 denied and their residence status revoked through no fault of their own, and for no fault in the investment or job creation, but simply because their good faith regional center sponsor decided to go passive (instead of choosing to solicit new investment under the Integrity Act, with compliance steps specifically relevant to soliciting new investment)? It’s dreadful that this question remains open.  

In addition to avoiding two of the three agenda topics previously announced for the engagement, the IPO speakers also provided no update on IPO operations or staffing, no update on form processing or procedures, and no estimated delivery dates for the many initiatives IPO ought to have in hand, including policy publication, regulations, timely processing study, website updates, or digitization. At the same time, the speakers all put on a good face, as if they believed they were doing a good job, engaging substantively, and answering questions. Surely it’s not possible to be that clueless and incompetent? Could I at least have the hope of believing that today’s non-engagement was an act of intentional malice by people who know what they’re doing? Or maybe we and the IPO speakers on today’s call are equally victims of a system that paralyzes communication by subjecting every decision and talking point to a thousand steps and checks.


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