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EB-5 Visa Blog

Why Allowing an I-829 Exemplar Would Be Better For Everybody - Even USCIS!

Matthew T Galati

We've mentioned it before - I-829 processing times are so long, they're illegal. And an I-829 tsunami is coming: I-526 filings (and approvals) have been on an upward climb since 2008. The present backlog bears only a fraction of the number of petitioners and family members in the process of immigrating. As of Nov. 30, 2015, we were at a 15.7 month wait for I-829s. It's reasonable to expect this will increase. Thus it appears that the IPO will continue to be buried beyond what it is statutorily required to handle for the foreseeable future.

But what if there was a more efficient way forward?

The December 2009 Neufeld Memo (GQ 70/6.2), revolutionized the EB-5 process by introducing the I-526 exemplar. The rationale behind this innovation was that "If USCIS evaluates and approves certain aspects of an EB-5 investment, that favorable determination should generally be given deference at a subsequent stage in the EB-5 process." So why not extend this to I-829s?

Consider the I-829 requirements (paraphrased from the regulations):

1.    The investor created a new commercial enterprise;
2.    The investor invested the requisite capital or was in actively the process of doing so;
3.    The investment and the enterprise were sustained throughout the residency period; and
4.    The investor created, or can be expected to create within a reasonable time, 10 full-time jobs for qualifying employees.

See 8 C.F.R. § 216.6.

For most regional center filings, I-829 filings are relatively static from investor to investor. Consider that requirements #1, the enterprise elements of #3, and (usually) #4 are proven through templated materials. If a regional center can provide cogent documentation on these points, an investor generally only needs to supply the specific information relating to his/her investment (e.g. wire documents showing funds leaving escrow and entering the NCE; schedule K-1s showing no distribution of capital).

Unlike the I-526, there's no regulatory requirement for investors to supply hundreds of pages relating to the source of their funds which, of course, is virtually unique amongst the individuals in an NCE and accordingly drives up I-526 processing times even on exemplar-approved projects.
 
What if a regional center could file an Exemplar I-829? Once approved, USCIS could give deference to the static elements of the I-829 template and award a total job creation figure to be credited in in accordance with an applicable job allocation agreement or in a first-in, first-out basis by default.

If the job creation is not sufficient for all of the investors in the project quite just yet, the exemplar could be updated through an amended I-924. Perhaps most importantly, if there are problems with the project, it is usually the regional center, not the investor, that is best suited to respond to an RFE.

Subsequent investor filings would only need to prove the investment was made and sustained. The ongoing business activities would be able to be proven through relatively concise investor-specific documents. This would enable processing times to fall significantly. USCIS could better allocate its resources to meet the demands of the day. Investors in successful projects could be approved faster than those projects without exemplar approval. This wouldn't be as controversial: the first-in first-out concerns of the I-526 are arguably less applicable to those petitioners that have already achieved residency.

I-829 exemplars would also lead to better adjudications: regional centers would be more incentivized to create more uniform filings. In the past and even today, the practice of some regional centers opting to avoid template I-829 filings has resulted in inconsistent documentation and theories of job creation from investor to investor, attorney to attorney. This can lead to varying results with USCIS and/or with the immigration courts. Uniform filings could make everyone better off in this regard.

Finally, I-829 exemplars would help put to rest many of the anxieties investors have in the immigration process. Investors and regional centers would have a better idea of what to expect at the end of conditional residency. Those in successful projects would be able to rest easy. Those in unsuccessful projects would have the opportunity to re-invest in accordance with the Material Change provisions of the May 30th Memo. Those not yet in the immigration process -- perhaps because of retrogression or a project raising funds in varying phases / tranches -- would have more information at their disposal before deciding to continue to pursue their I-526s or even subscribe to a project.

Exemplar I-829s could lead to faster, more uniform, higher quality adjudications and help alleviate many investor anxieties. So perhaps USCIS should consider this as its policy evolves and the demands on adjudicators increase.

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