Unpacking the Draft EB-5 Memorandum PM-602-0121
By Robert C. Divine, Vice President, IIUSA; Shareholder, Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C.
After years of considering the issues presented squarely by stakeholders, on August 10, 2015 USCIS issued a draft policy memorandum, PM-602-0121, to provide guidance to EB-5 adjudicators on certain requirements for job creation and “sustainment of the investment.” The impetus for the draft is the industry’s anticipation of the impact of visa number retrogression in expanding the period from I-526 filing to I-829 adjudication for mainland-China-born investors, but the issues have needed resolution regardless of that phenomenon. USCIS is using its admirable policy of publishing a draft policy for stakeholder comments before it finalizes and implements the policy. Comments are due by September 8, 2015.
This article assesses what the draft memo would do and not do, with implications for how it might be changed in response to expected comments. The article does not repeat the memo and presumes the reader has at least briefly read the memo, linked here. With hope the article will spur useful comments to USCIS.
The memo seeks to address two problems posed by the unpredictable and increasingly protracted time period between I-526 filing (after investment) and I-829 adjudication:
1. Whether to allow, at I-526 stage, more time for jobs to be created, since the current policy of 2.5 years after I-526 approval is likely to undershoot the real time for the majority of investors who were born in mainland China and must wait increasingly longer for a visa number before processing for and beginning their two years of conditional residence in the U.S.
2. Whether to relax what appears to be the current policy, reflected in the May 2013 policy memo, requiring investors to sustain the investment at risk in the job creating enterprise until the end of conditional residence, and whether to require created jobs to remain in place to the end of conditional residence.