By Marta Lillo
Accessing information about projects that create jobs and contribute to the U.S. economy is a crucial preliminary step in the EB-5 investor visa application process. However, EB-5 applicants must be careful when assessing projects, as there is no public registry to consult them.
EB-5 projects are private securities offered by licensed brokers/dealers, so no list is available from the U.S. Citizenship and Immigration Services (USCIS). Today, EB-5 investors rely heavily on licensed brokers, immigration attorneys, Regional Centers (RC), and developers to obtain project knowledge. The quality of the information they receive depends on these third parties’ reputation and reliability.
Due to the EB-5 Reform and Integrity Act of 2022 (RIA), the EB-5 community is demanding greater project transparency, which leads to discussions about making approved I-956F forms for Regional Center projects more accessible, at least, given it is public information.
“Many people advocate for disclosure by USCIS of approved I-956F applications on its website. I think increased transparency is generally beneficial, providing potential investors with a reliable way to confirm what they are being told by project promoters and regional centers,” Nicolai Hinrichsen, an EB-5 attorney and partner at Miller Mayer, says.
Increasing EB-5 project transparency can help investor decision-making and regulate the sector, adds Fredrick Voigtmann of the Law Office of Fred Voigtmann, P.C. “More publicly available information, as long as it is not confidential or otherwise legally protected for some reason, is always better than less information available for potential EB-5 investors to review and evaluate as they complete their due diligence,” he adds.
However, these immigration attorneys and others also caution that the effectiveness of such a list would depend on the USCIS.
Accessing approved I-956F forms could improve EB-5 transparency
Among the integrity measures established by RIA, the EB-5 program requires that active Regional Centers file an I-956F for each of their EB-5 projects. The approval of this form confirms the project’s business plan, job creation strategy, and the RC’s commitment to providing its EB-5 investors with multiple investment options.
These approvals are public information. However, EB-5 investors only learn of them by submitting a request to the USCIS or by consulting the Regional Center behind the project directly.
Immigration attorneys confirm a list of such approved projects could increase transparency. However, there’s no clarity as to its absence today. “In the EB-5 world, there does not seem to be much rationale for USCIS not publicly providing an official list of approved I-956F forms for various Regional Center projects,” says Voigtmann.
Brandon Meyer, an immigration attorney and principal of the Meyer Law Group, insists this list is possible because there are similar cases in the U.S. government. “This is available with other government-approved projects outside of EB-5, so there’s no reason why USCIS cannot publish a list of approved I-956Fs,” he insists.
The success of a public list of EB-5 projects relies on the USCIS
According to securities and litigation attorney Robert Cornish, the USCIS website’s list of current EB-5 Regional Centers by state is a helpful reference, especially for keeping project information current. “Would there be liability in the event something isn’t removed from the list, and how would it even monitor such things in a timely manner? Again, this is why a simple list much akin to the existing Regional Center list on the USCIS website would likely be the answer,” he says.
However, Hinrichsen cautions that the USCIS’s capability to manage the list would determine the effectiveness of disclosing this public information. “The effectiveness and fairness of such disclosure hinges on USCIS’s competent management of such a process. It is not hard to imagine a scenario where USCIS has approved an I-956F yet fails to accurately reflect that approval on its website.”
The EB-5 attorney adds the current delays in the agency’s notice of I-526E and I-956F forms reception provide “a sense of how poorly USCIS might manage website disclosure.”
Cornish suggests that any list produced should only include information and not be considered a promotion of projects in any way. “I don’t think ‘access’ to project information would be proper given offering restrictions and the fact that some Regional Centers intentionally choose to remain off the web and stay below the radar. That is the reason I believe why a list without access would be acceptable.”
Meanwhile, Voigtmann insists the efficiency of such a list requires “a robust and honest conversation between EB-5 stakeholders and USCIS regarding the potential benefits of publicly providing such a list would this additional step toward transparency become a reality.”
While the discussion continues, EB-5 investors must continue thoroughly screening their legal and investment counsel before selecting a project, as the information provided can sometimes be unreliable and misleading. “At a minimum, the data being provided is global but limited to whatever that particular agent, attorney, and/or RC is exposed to in their daily business,” Meyer concludes.
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