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How will reauthorization affect subsequent I-526s in a project?

I have seen lots of "grandfather" answers to those EB-5 investors filing I-526s prior to September 30, 2015. BUT, if an I-526 is filed on September 21, 2015, and approved by USCIS on December 21, 2015 as the first I-526 for a project, what happens to subsequent I-526s filed post September 30th, 2015 and to the project where there was no material change?

Answers

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    No one knows the answer to this question and USCIS is not commenting. Therefore, we will have to wait and see. It behooves USCIS to give EB-5 stakeholders some clarity and certainty about how it will handle (fairly) these situations. Hopefully, the May 30, 2013 Policy Memo's language on deference will be considered and implemented in a fair, even-handed manner to any new EB-5 law.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    I-526 petitions themselves may be grandfathered, but the underlying project may not be grandfathered. Any opinion on this matter is mostly speculation.

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    John J Downey

    Immigration Attorney
    Answered on

    We cannot be sure at this time as to what the reauthorization will look like. However, as to your question, anything filed after the date of change will normally be required to reflect the new changes.

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    Robert Cornish

    Securities Attorney
    Answered on

    My understanding is that there is virtually little or no chance of an I-526 being approved in three months or less under current conditions. Others may well have a different understanding.

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    Ed Beshara

    Immigration Attorney
    Answered on

    There are many interpretations concerning the new legislation and the filing of I-526 petitions. There is a belief that the filing and approval of the I-526 petition does not grandfather in the required investment amount of $500,000,00. Therefore, the required investment amount of $500,000 may be grandfathered in based upon the filing of an exemplar I-526 petition for pre-approval of the project.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    How your scenario will be determined will be based on the effective dates and grand-fathering definitions or language on the reauthorization bill that gets passed. However, according to the EB-5 Policy Memorandum dated May 30, 2013, USCIS will give deference "to the determinations made earlier in the EB-5 process, and the earlier determinations will be presumed to have been properly decided. Thus, if USCIS approves Form I-526 presenting a Matter of Ho compliant business plan and a specific economic methodology, USCIS will defer to the finding that the methodology was reasonable in subsequent adjudications of Forms I-526 presenting the same related facts and methodology." USCIS Policy memorandum at p. 23. While this language is on the business side of the I-526 petition, it also should apply to the investor side of the petition determination. Given this kind of deference policy, I think it will be difficult for USCIS to justify denial of subsequently filed petitions within the same group if they approved one case based on the old standard unless the bill that gets passed specifically excludes grandfathering or some such.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    If the amount is raised in new legislation, filings after the implementing date will need to meet the new requirements even in the same project. I assume that would get a greater percentage interest if in the same project.

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