My EB-5 Wish List for 2013 -

My EB-5 Wish List for 2013

Kate Kalmykov

1. Faster processing times for EB-5 related petitions across the board. For the better portion of 2012, USCIS has repeatedly stated at EB-5 Stakeholder events that their target processing times for all EB-5 related form types including:

· I-924, Applications for Initial Regional Center Designations

· I-924, Amendment Applications to Regional Center Designations

· I-526, Immigrant Investor Petitions

would be four months. Current processing times for these applications range 8-10 months. Making the process extremely lengthy both for companies seeking access to EB-5 capital, as well as investors intent on starting their lives in the U.S. In 2013, my hope is that processing times become workable.

2. Issuance of New EB-5 Policy Guidance. In November of 2011, USCIS Director Mayorkas announced and USCIS released draft guidance that was supposed to streamline all EB-5 guidance in a central memorandum. The public was given an opportunity to comment and a second iteration of the memorandum was issued for comment in January of 2012. I urge USCIS to publish the new guidance to give both the USCIS adjudicators, as well as the public reliable and binding guidance as to what criteria EB-5 related applications must meet for approval. Not only will this give assurance to the public and provide a more workable framework for applications, but it will eliminate the all to prevalent Requests for Evidence, Notices of Intent to Deny and Denials based on constantly changing policies of adjudicators.

3. Reconsideration of Premium Processing for EB-5 Regional Center Applicants. The adjudication of I-924 applications for regional center designation, amendments of regional center designations for geography or industry code and exemplar I-526 (project pre-approval) is taking at least 9-10 months. Introducing Premium Processing for I-924 applications, a process by which applicants pay an additional fee to have their applications adjudicated within a two week timeframe would allow many projects that are relying on EB-5 funds to move forward at a reasonable pace in line with business needs. USCIS Director Mayorkas initially announced his intention to introduce this program in June of 2011 to I-924 applications but then scrapped the idea earlier this year citing unexplained concerns related to ‘fraud.’

4. Clear Guidance on Requirements for Job Impact Studies. In the past year, the USCIS has introduced new restrictive interpretations related to what jobs qualify for EB-5 purposes particularly for projects that generate tenant jobs. However, they have failed to provide clear guidance on what qualifies as EB-5 eligible and what does not, repeatedly at stakeholder events that cases will be adjudicated on a case-by-case basis. Constant changes and reinterpretations of what constitutes“EB-5 eligible jobs” leads to uncertainty in the EB-5 world: both for the developer or organization seeking funding to create new, U.S. jobs, as well as the foreign investor and his dependent family members who are using the program to obtain U.S. permanent residency.

5. Streamlined Adjudication of I-924 Amendment Filings That Takes into Consideration the Realities of Business. As readers of this blog know, USCIS designated regional centers are approved for specific industries, geographic areas and economic models. Changes to initial designations in any of these areas is permitted but an amendment request must be filed with the USCIS and approved before investors may begin to subscribe to a particular project outside of the scope of the regional center’s initial designation. USCIS must streamline the process for amendments and reduce wait times to receive these approvals. Currently, requests for an amendment to an existing center are taking longer to adjudicate then even applications for initial regional center designation. 

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