I was encouraged by the remarks made by USCIS Director Rodriguez at a recent EB-5 stakeholder meeting, in which he praised the merits of the EB-5 program and emphasized the importance of the role played by USCIS in maximizing the beneficial impact of the EB-5 program on the U.S. economy, as envisioned by the U.S. Congress when it created the EB-5 program.
At the same time, I am also very confused by the contradiction between these laudable goals and the adjudication process. Because these adjudication procedures not only fail to advance these goals, but on the contrary, they reduce the efficiency of adjudicating EB-5 applications in every respect.
I have suggested policy adjustments many times and have advocated for improvements to the legal interpretations that could enhance the EB-5 program. But that is not the purpose of this letter. Instead, the purpose of this letter is purely to suggest improvements to the adjudication process that could significantly improve the EB-5 program in a way that benefits investors, regional centers, project developers, and the U.S. economy without utilizing additional resources. In fact, I would venture to say that the following suggestions may be beneficial to all parties, including USCIS, and will not cause harm to any party. Therefore, I sincerely hope that even if you do not consider adopting all of the following suggestions, you will consider adopting at least some of them.
Here are all of my suggestions:
1. USCIS must shorten the processing time for project applications. This is absolutely critical to the success of the project. There is no doubt that it is beneficial to everyone—USCIS, project developers, and investors—for USCIS to adjudicate and approve projects before investors invest and file I-526 applications. However, if project developers have to wait 8 months, 10 months, 12 months, or longer for a project to be approved before investors can invest and file applications, this goal will never be achieved. If project developers cannot ensure that the adjudication time is within 4 months, USCIS will continue to double the workload of project developers by forcing them to start promoting the project, leading to investors filing I-526 applications at the same time that project developers are filing I-924 exemplar project applications. At this point, USCIS must simultaneously adjudicate the I-924 application and the I-526 application for the same exemplar project, issuing Requests for Evidence (RFE) for the I-924 application, which could potentially be hundreds of such notices, or RFEs for the I-526 application for this project. This is the current mechanism, which is harmless to anyone, but also of no benefit to anyone. Eliminating these applications and RFEs can save a significant amount of manpower and resources, allowing USCIS to meet the goal of adjudicating within 4 months without needing to add additional staff.
2. USCIS should accelerate the processing time for I-526 applications of investors in already approved projects. To encourage project developers to use I-924 applications to obtain project pre-approval, some benefits should be given to such projects and their investors. Logically, the benefit is to allow investors in these types of projects to receive I-526 adjudication results faster than investors in other projects. This not only serves as an incentive for developers to obtain project pre-approval, but also means that the adjudication process for these types of investors is much more reasonable and straightforward.
I-526 In the adjudication process, the most time-consuming part is the review of project eligibility. Once this part of the work is completed, professional adjudicators whose only role is to review the source and path of funds should be able to complete the review within 3 to 4 months. It makes sense that these applications should be adjudicated faster than those requiring a full project review. In fact, if the only issue is the source and path of funds, USCIS should reconsider giving these types of applications priority processing. Priority processing, in turn, will increase efficiency because it reduces the expenditure on additional adjudicators. This will allow EB-5 applications to receive the same adjudication treatment as family-based and employment-based applications, because employer I-140 applications and family I-130 applications are adjudicated independently of the foreign beneficiary's permanent residence application.
3. USCIS should process all I-526 applications for a project together. USCIS has already treated two completely different types of applications differently. On one hand, USCIS has stated many times that for the sake of adjudication efficiency, it will process all I-526 applications together. But in fact, many later investors from the same project will receive adjudication results faster than earlier investors because all the issues of the project have already been resolved.
Recently, in order to support a strict first-in, first-out adjudication goal, this laudable goal seems to have been shelved. This has led to a decrease in adjudication efficiency, as it may take adjudicators more than several months, or even more than a year, to review multiple investor applications for a single project. This is also very unfavorable for many projects that require a specific number of investors to be approved before funds can be released. The result is that the project may be paused until the minimum number of investor applications are approved and their funds are released from the escrow account.
4. Applicants affected by visa retrogression should have their own separate processing queue. This is another adjustment that is beneficial to all and harmful to none. Applicants affected by visa retrogression will not gain any benefit when their I-526 applications are approved. Many will even be adversely affected, because the longer the I-526 adjudication time, the more likely their children will be protected by the provisions of the Child Status Protection Act and immigrate with them.
Investors not affected by visa retrogression will also benefit. Because their application processing speed may be much faster, and because they can immigrate to the United States faster, they can truly benefit from the adjudication of their applications.
USCIS will benefit by focusing its human resources in a way that maximizes the benefits to its stakeholders without needing to expand human resources. Such a move is not unprecedented, as USCIS has long delayed the approval of I-130 applications for family-based immigration categories with long backlogs simply due to resource allocation issues.
5. USCIS should establish a separate processing queue for EB-5 investors in direct investment projects. Until last year when USCIS attempted to implement the I-526 first-in, first-out adjudication plan, direct EB-5 project applications were adjudicated faster than regional center project applications. Because of certain reasons related to I-526 applications mentioned above, this system makes a lot of sense for investors in already approved projects. Why must EB-5 investors in direct investment projects be placed behind project investors who have to go through a complex review process? Conversely, many EB-5 investors in direct investment projects involve far fewer issues for adjudicators to handle.
There is another reason why EB-5 investors in direct investment projects should have a separate—and shorter—processing queue. Regional center investors do not necessarily have to remain in the United States for the operation and development of the investment project, but unlike regional center investors, EB-5 investors in direct investment projects are usually hands-on managers of the investment project. Therefore, it is very important for them to remain in the United States, but this is conditional on the approval speed being accelerated.
6. The attorney for the investment project or regional center should be recognized by USCIS. Obviously, there are two parties in an I-526 application—the project developer and the investor. In most cases, the project developer's attorney and the investor's attorney are not the same person. Currently, in I-526 applications, the practice of USCIS only recognizing the investor's attorney has led to many abnormal results. The investor's attorney must submit an application consisting mainly of project-related information, but the investor's attorney is not responsible for the project-related information and is usually not aware of the accuracy of the project-related information. If USCIS has questions about the project, a strange situation arises: USCIS issues an RFE to the investor, but the investor does not know how to respond. The abnormal situation faced by the project developer is having to hope that the investor or the investor's attorney can provide the project information to the project developer. The project developer relies on the investor's attorney to respond to the RFE, but the constant is that even if the attorney does not represent the project developer. The current adjudication process also leads to different feedback from different attorneys for the same RFE for the same project.
Of course, if USCIS adopts the suggestions earlier in this letter that allow project issues to be resolved at the I-924 stage—the developer's attorney submits G-28 forms for the purpose of the I-924 application, this would not be the result. However, before the above situation occurs, USCIS still needs to react in the same way as it does for other employment-based applications. In all employment-based applications, USCIS recognizes that employers may have different legal counsel than employees. And the I-526 application is just one example used to prove that USCIS forcing two completely independent parties to share the same attorney is detrimental to all parties.
If USCIS treats the project developer as a separate party in the I-526 process, it would only need to issue one RFE for the project instead of issuing hundreds of RFEs for the hundreds of investors in that project (for example). This is obviously of no benefit.
7. The Electronic Immigration System (ELIS) is a laudable goal, but an example of serious flaws in execution. ELIS should be implemented in such a way that a full set of project documents is available online for investors and their attorneys. The fact that this system is almost completely unused and unimplemented is the best proof of its lack of user-friendly features. USCIS should work with stakeholders to develop a system that meets the needs of both USCIS and stakeholders. In this case, these needs should coexist.
8. USCIS should create an I-829 exemplar program. There is less focus on the I-829 review process, largely because only a small fraction of investors have reached the I-829 application time. As more and more applications are filed, the same problems of low processing efficiency as with I-526 have been highlighted.
Take a project with 100 investors as an example. 100 different applications may be submitted by 100 different attorneys, and the investors and their attorneys know little about the content of the documents and cannot prove their authenticity. Almost 100% of the document content involved in I-829 applications is related to the regional center and the project developer. Hopefully, but not absolutely, all of these 100 I-829 applications will contain the same project information and job creation. If USCIS raises questions about job creation or whether the investor has maintained their investment, USCIS will need to issue 100 RFEs; are all of these necessary? Is there really any point?
The author believes the answer to both questions is no. It would be more meaningful to have an I-829 exemplar program through which USCIS can adjudicate all issues related to the project. This would be submitted by the project and its attorney. Any specific questions regarding the investor should be submitted by the investor's attorney when their window is open for I-829. Any questions regarding the project should be adjudicated before most investors file their I-829.
Of course, there may be instances, where early investors have sufficient job opportunities when filing their I-829 applications, and then more jobs are created by the time later investors file their I-829. This can be resolved through a procedure for updating or supplementing the I-829 exemplar application.
9. USCIS should provide an exemplar application procedure for immediate filing of I-829 when material changes occur. When a project undergoes material changes after being approved for conditional green cards, investors must wait 21~24 months to see if the changed project will meet the requirements for removal of conditions. A more effective system to address these concerns would be to have an application procedure through which USCIS could adjudicate whether the new project with material changes is compliant with EB-5. If necessary, this would give investors the opportunity to make different investments or complete any necessary changes to enable them to remove conditions.
10. USCIS should disclose information to the public. Although this does not fall under the category of improving processing efficiency, it does fit the win-win strategy of not increasing costs. USCIS has correctly focused on protecting the public from investing in fraudulent projects. Then, why deny the public's need for factual information so that investors can make more informed decisions when investing in projects? Why should USCIS deny investors information about which projects are approved and which are rejected? Why should USCIS deny factual information about how many investors have filed I-526 for a project, how many are approved, and how many are rejected? Statistical information about regional centers should also be provided, although this information may be misleading because investors invest in a project, not a regional center.
I would be very grateful if you two could consider my suggestions to make the EB-5 program more efficient, more friendly, and more in line with the public purpose for which Congress implemented this program, all of which would not cause concerns about any important anti-fraud and national security issues for USCIS.
Sincerely,
Respectfully,
Ronald Klasko
【Editor's Note】Ronald Klasko, as the filing attorney for the Pennsylvania Turnpike project exclusively represented by Worldway, given that the Pennsylvania Turnpike project is a government project that has received 100% pre-approval from USCIS, has joined with Worldway to launch a 5-day express filing service. As long as the investor's personal information is complete and without issues, Ronald Klasko's legal team will file with USCIS within 5 days after receiving the client documents submitted by Worldway, helping investors actively respond to the upcoming U.S. investment immigration visa retrogression issue.
