EB-5 Stakeholder Engagement Conference Summary
July, 28th 2016 USCIS held an EB-5 Stakeholder call today where it discussed EB-5 program updates and sought feedback from stakeholders. Some of the key points include the following:
- 5 years ago there were less than 200 Regional Centers. Today, there are more than 850.
- In the last 18 months, over 2,300 I-829 petitions were approved showing the creation of over 23,000 jobs.
- The Department of Commerce is currently in the final stage of review for publication of its study of the economic impact of EB-5. They have access to data that the private studies do not, and their report is due out very soon.
They also mentioned some challenges that the EB-5 program faces:
- Ensuring that Regional Centers are undergoing sufficient oversight of the projects related to it. Making sure that proper due diligence and oversight is a duty of the Regional Center, and if they are not complying with these requirements the Regional Center will be terminated.
- USCIS actively talks to both the Securities and Enforcement Commission (SEC) and Immigration and Customs Enforcement (ICE) on a weekly basis.
- The Investor Program Office (IPO) Continues to hire more staff, with over 25,000 pending petitions, they hope to reach 171 people by the end of the calendar year.
- Regarding new site visits, these will be at the site of the Job Creating Entity. These site visits will be conducted by federal fraud prevention officers. These officers will be checking to ensure that the project is consistent with the submitted plans.
- The IPO is implementing a new data system to update and publish EB-5 data.
The IPO also hosted a Q &A session where they provided the following information and clarifications:
- If funds come from a bank loan or real property collateral, USCIS will not require documentary evidence that the loan has been paid off at the time of filing the I-829.
- USCIS is working on new policy to take into account the feedback from its last draft policy memo in addition to covering more areas of policy, which will then be sent back to the EB-5 community for their feedback. In the meantime, the IPO suggests to use the escalation process for any case specific issues.
- USCIS is constrained in their ability to implement premium processing for EB-5 petitions due to statutory language by Congress that limits the fees that can be charged for any kind of premium processing and therefore there are operational constraints in implementing this for EB-5.
- The IPO also clarified that the May 13 policy memo remains in effect in providing for deference for the different types of petitions filed. A hypothetical project provides no deference. An actual project filed will provide deference, and an exemplar petition will provide deference to certain parts of the project such as the business plan.
- The petitioner will be able to provide additional information at the I-829 interview, and will also be able to supplement the record after the interview.
The Economist also spoke regarding feasibility studies and clarified that they are not a de facto requirement. However, they can ask for them when they think they are necessary, and are very helpful in reviewing the project. A feasibility study is particularly useful to the IPO to help show that the business plan is Matter of Ho compliant, and in showing the timing of capital receipts and disbursements, debt services, and other details, which significantly reduces the chance of an RFE being issued.
Submitting a Cash Flow statement can also reduce processing times. It helps the IPO like a road map would. This is not required either, but most projects have this available and it is very useful to include in order to efficiently substantiate the information. The Economist also reiterated that if there is any confusion regarding an RFE to please respond for clarification of the RFE as soon as possible.