As the newly appointed EB-5 Committee chair for the American Immigration Lawyers Association (AILA), Jennifer Hermansky brings a wealth of experience and knowledge to the role. In her discussion with EB5Investors.com, she delves into the challenges and trends in the EB-5 visa landscape, particularly the impact of the Reform and Integrity Act (RIA) of 2022 and the re-adjudication of the source of funds and other program requirements.
The EB-5 attorney underscores the efforts of the United States Citizenship and Immigration Services (USCIS) to tackle visa backlogs for EB-5 applicants and adjudicate more cases. Additionally, she sheds light on AILA’s advocacy work, focusing on reforms, increased transparency, and closely monitoring issues such as Regional Center terminations.
How do you feel about being in this position at AILA, and what do you hope to achieve?
I have been serving on the EB-5 committee for several years, including as Vice Chair. I am happy to continue in this leadership role over the upcoming year for AILA’s EB-5 committee. This is a challenging time for the EB-5 committee and other stakeholder organizations. With the passage of the [RIA], Congress inserted a new Section 107 to promote transparency in adjudications. Section 107 states that employees of the Department of Homeland Security ([DHS] must remain impartial. This section also states that USCIS may not meet or communicate with persons associated with any regional center, new commercial enterprise, job-creating entity, or any person or entity associated with them in “a manner that is not accorded to all other petitioners, applicants, and seekers of benefits under such immigrant investor program.” It appears that the Immigrant Investor Program Office (IPO) has taken the position that this section prohibits the IPO from directly communicating with stakeholder organizations about EB-5 issues. Despite this, the AILA EB5 committee continues to send its positions, ideas, and concerns to IPO via formal communication channels on issues that we deem of importance or areas of focus for our EB-5 practitioners. This includes serious issues on EB-5 investors’ source and path of funds, adjudication trends for I-526, I-526E, and I-829 petitions, regional center terminations, and implementation of the RIA. The committee also engages with the USCIS Ombudsman’s Office regarding issues with inconsistency of adjudications and particularly egregious issues facing investors.
Why did you get involved in EB-5, and what is an important trend you are observing now?
I have a background in finance, so I enjoy working on immigrant investor petitions. One important trend affecting investors right now is re-adjudication of the source and path of funds requirement at the I-829 stage. USCIS previously took the position that it would not “re-adjudicate” the source and path of funds at [this] stage. However, recently, USCIS has been reexamining the source and path of funds at the I-829 stage to determine if the investor engaged in a “currency swap” with an entity or individual to transfer funds to the U.S., which affects investors from several countries with currency restrictions. Where the I-526 Petition was approved, USCIS is now seeking additional documentation as to the source of funds used by the third party in the currency swap. USCIS even denied I-829 Petitions because the investor did not meet their burden of proof to show the lawful source and path of funds. EB-5 investors are then placed into removal proceedings. Additionally, we are now seeing trends in the U.S. embassies and consulates asking for similar evidence in the context of the immigrant visa process, with cases being sent back to USCIS for I-526 Petition revocation. USCIS’ change in policy and adjudication standard many years after the I-526 Petition approval is legally problematic, and the committee is focusing on this issue.
Has the recent fee hike for the EB-5 program impacted applications, and what strategies should be implemented to maintain investor interest?
Overall, I do not think the fee increase has deterred serious investors from making an EB-5 investment. USCIS has released its quarterly statistics, and we have over 2,600 I-526E Petitions pending through the first quarter of 2024. It appears that there is still quite a demand for EB-5 investment opportunities.
What efforts are being made to address the visa backlog for EB-5 applicants pre-RIA and backlogged countries, and how can this challenge be mitigated?
There remains a backlog in the Visa Bulletin for EB-5 immigrant visas for pre-RIA investors born in mainland China and India. While these investors remain in a visa backlog, USCIS has made some recent changes to help protect children from “aging out” and provide increased protections under the Child Status Protection Act (CSPA). First, USCIS has been adjudicating I-526 Petitions under the “visa availability approach.” Under this approach, USCIS will hold pending those I-526 Petitions where a visa number is unavailable. In doing so, the I-526 Petition remains pending for a longer time, thereby helping to protect children from “aging out” because the amount of time the I-526 Petition remains pending is later subtracted from the child’s age under the CSPA. Secondly, USCIS indicated that it would interpret the CSPA favorably and calculate the child’s age under CSPA using Chart B of the Visa Bulletin instead of Chart A. This change also seeks to protect children from “aging out.”
What are AILA’s expectations for the adjudication process for EB-5 petitions going forward?
In its recent statistics released for Q1 of 2024, USCIS seems to be adjudicating more cases per quarter than it has in quite some time. It is the committee’s hope that USCIS works to reduce I-526 Petition processing times for pre-RIA investors with a visa number available to them, as well as for I-829 Petitions, which have a very long processing time. Our members are reporting that a large amount of mandamus litigation is still being filed for I-829 Petitions. We hope that USCIS will start releasing more data about its operations to facilitate transparency, including the number of adjudicators, completion goals, and strategies for reducing processing times. The AILA EB-5 committee will also be asking USCIS for more transparency relating to I-526E petition adjudications, as currently, the processing times are not available on the USCIS website, and USCIS has not released data concerning the number of pending cases under the various visa set aside categories. This type of data is important to both EB-5 investors and projects.
In what ways will AILA continue advocating for reforms or improvements to the EB-5 program?
The AILA EB-5 committee will continue communicating its recommendations, positions, ideas, and concerns to the IPO via formal channels. In the upcoming year, we also hope to communicate more with the State Department regarding visa usage and backlog reduction since the State Department is not implicated by Section 107 of the RIA.
Any other trends in EB-5 you’d like to point out?
USCIS has recently started sending Notices of Intent to Terminate (NOIT) EB-5 Regional Centers that did not pay the Integrity Fee to USCIS by the 2023 deadline. Some of our members have reported that Regional Centers have received NOITs where they paid the fee, but there may have been a problem with the Pay.gov website or the processing of the payment by USCIS. AILA is tracking this issue closely so we can communicate with the agency on problematic cases as required. Moreover, the AILA EB-5 committee will be tracking closely the effect of terminations of Regional Centers on pending or approved I-526 Petitions, as USCIS previously issued guidance that failure of a Regional Center to pay the Integrity Fees required by the RIA would be an “administrative termination” that should not impact adjudication of the investor petitions that otherwise remain approvable.
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