What are the implications of the EB-5 Adjudications Policy Memorandum?

The most significant advantage of the new policy memorandum is that the EB-5 project is not required to obtain prior approval for new industry codes and geography. However, new memorandum requires proposed regional centers to prove that proposed economic activity will substantially promote economic growth in the proposed area as a whole. The main concern seems to be ensuring the integrity of the program. The new memorandum seems to remove the need for an amendment when regional centers add new geographic locations and industries.

There are many nuances to the policy memorandum, some of the policy shifts will provide a more business friendly and practical outlook that will make the EB-5 more conducive to ongoing investment. The Service is clearly still concerned with ensuring the integrity of the program. Amendments are still required in certain circumstances and advisable.

I am not sure whether the Memo will make it easier for a potential regional center or existing regional center. It does clarify some issues but not others.

The new memo provides guidance for adjudicators as to the current EB-5 immigrant investor law and regulations. It does not change the law or regulations from a legal requirement perspective. It may help immigration attorneys and regional centers to explain to the adjudicators how a project qualifies under the existing statutory and regulatory scheme. It was meant to put everything about the EB-5 requirements in one place and state them in a succinct and clear manner so that the USCIS adjudicators know what the policy considerations are as well as the law and regulations. As for the language regarding RCs being able to add new geographic locations and industries, this seems to remove the need for an amendment. It is possible for regional centers to proceed with filing I-526 petitions and making the case with the USCIS at that time with respect to geographic or industry focus changes. Some regional centers still will want the certainty of the amendment process, but until the processing times decrease, this offers a tantalizing option.

USCIS''s policies have become restrictive in recent times on this subject. USCIS requires that the supply chain, as well as the labor pool, for proposed projects will be important in determining the reasonableness of a proposed regional center''s geographic boundaries. The new proposed regional center has to prove that the proposed economic activity "will substantially promote economic growth in the proposed area as a whole." As such, this standard will be particularly problematic with respect to previously approved regional centers with a broader geographical area because this language implies that every project in a regional center must impact every area of the regional center. As such, it does not appear that the recent EB-5 Adjudication Policy memorandum has made it easier for existing regional centers to add new geographic locations and industries. The amendment process is still in place for USCIS to streamline the adjudications of affiliated individual EB-5 petitions when new geographic locations and industries are added and to determine that the new projects impact every area of the regional center.

The new policy memorandum has many benefits for existing regional centers as well as EB-5 projects. The main advantage is that the EB-5 PROJECT does not need to obtain pre-approval for new industry codes and geography, which is a substantial advantage. For marketing purposes, I-924 Amendments may be filed to obtain pre-approval of projects which might include new industrial codes as well as new geography.

The policy is not consistent with the first full paragraph on page 26, so I don''t know.