The specially appointed attorney for clients of the Pennsylvania Turnpike project, exclusively represented by WorldWay—renowned U.S. immigration attorney Ronald Klasko—recently wrote to the USCIS and published an open letter calling for improvements to the EB-5 investment immigration environment as a representative of industry leaders. Last week, the WorldWay official website published this open letter in a timely manner to help investors understand the latest developments and trends in the U.S. EB-5 investment immigration sector.
Ronald Klasko's open letter has had a widespread impact on the U.S. immigration community. Recently, another industry leader—the specially appointed attorney for the 520 Bridge Bond project exclusively represented by WorldWay, and former Chief of the legacy INS, Robert Divine—also responded positively to the letter and released a new open letter addressing Ronald Klasko's suggestions.
The open letter from Robert Divine, the specially appointed immigration attorney for the 520 Bridge Bond project, former Chief of the legacy INS, and Vice Chair of the Invest In the USA (IIUSA) association, is published as follows:
I appreciate the open letter Ronald Klasko sent yesterday to the USCIS EB-5 Program Office regarding process improvements. For the consideration of USCIS and to stimulate further discussion, I am publicly offering my response to these suggestions here.
Most importantly, I agree with Klasko's suggestions #1, #2, #3, #7, and #8. USCIS should allocate resources to adjudicate a project exemplar certification—pre-approval—within 3 months (rather than 4 months). This requires moving from the current cumbersome process to an improved process through electronic filing of the "project document package." If USCIS has any questions, they can ask the appropriate project party directly, rather than the 100 investors who submitted applications. Once approved, this NCE (New Commercial Enterprise) can promote the approved project, and investors can submit applications electronically, linking to the previously approved "project document package." This will also accelerate approval, as they would only need to review the investor's source of funds and remittance path documents. Furthermore, USCIS should allow investors, if they wish, to have their I-526 applications reviewed first without waiting for the invested project to be approved. Once the project is approved, it can also be processed electronically to accelerate approval.
A similar approach should also be applied to the I-829 adjudication process to save a significant amount of work. Because early immigrant investors will finish their I-829 adjudication much earlier than other investors, and the project is still in the development process, it is necessary to use an electronic system to implement tiered updates based on the I-829 stage, allowing developers to demonstrate the gradually increasing job calculations to meet the requirements of investors who are beginning to submit their I-829 applications.
These suggestions are not entirely new. In fact, USCIS previously included most of them in a "Request for Comments" proposal released on May 19, 2011, which was introduced and heavily promoted by then-Director Alejandro Mayorkas (current Deputy Secretary of Homeland Security). USCIS proposed to adjudicate "shovel-ready" projects within 4 months and establish a "premium processing" path for I-526 adjudications (3 weeks, $1,225). Other parts of this proposal—regarding email correspondence with regional centers and having a round of review before a regional center project is denied—have already been implemented. It is clear that USCIS is still in a vortex, including: leadership of the EB-5 program, changes in office locations, national security, and project prioritization, so it has been slow to push forward the rest. Three weeks might be too short for USCIS security checks, but accelerating the review process would make everyone use the sensitive exemplar certification pre-approval procedure. At subsequent stakeholder meetings, USCIS never mentioned the plan again. They should go back and implement it.
Suggestion #4 - Let USCIS intentionally delay applications for families with children nearing age-out until visas are available for them - interesting, but truly difficult to implement, so it also needs to hear more opinions from others. For one, many projects only release funds after I-526 approval, and this suggestion would hinder the financing needs of such projects. Developers need to find solutions that allow investors to choose later approval and waive fund escrow. Second, the number of visas is a constantly changing process, and USCIS has no control over this (EB5Sir note: the number of visas is managed by the Department of State Visa Office), so it is unclear how USCIS would know how long they should delay.
I disagree with suggestions #5, #6, and #10.
Regarding suggestion #5, the law actually authorizes USCIS to prioritize the adjudication of regional center projects over other projects, rather than the other way around, and USCIS cannot reverse Congressional policy. Instead, USCIS should be more reasonable regarding the "substantive steps" requirement. In projects managed by small investors, since investors cannot be there to manage the project before submitting the I-526, once the required investment funds have been committed and the business plan shows that these investments will be used to create jobs, that should be sufficient. USCIS should abandon extending the importance of the first part of the Matter of Ho decision (22 I&N Dec. 206 (BIA 1998)) beyond its practical meaning—requiring investment into a company account and signing an allocable agreement, but having no credible plan for how to create jobs through these required investments is not enough.
I have opposed suggestion #6 many times, but Ron says that if USCIS implements #1, #2, and #3, then the necessity of separate representation for the regional center and the client at the I-526 stage would no longer exist. However, we can argue that the NCE (New Commercial Enterprise) may also be independent of the regional center and is also involved in the I-526, and should also be represented. Let us avoid complicating these situations.
I think suggestion #9 - providing a process for immature I-829 exemplar applications to obtain approval for material changes - is unnecessary. Because USCIS clarified in a May 30, 2013 memorandum that changes at the I-829 stage are not necessarily deemed "material" and will not prevent I-829 approval if the changed project can meet the final investment and job creation requirements required by the EB-5 program. The memorandum addresses the more substantive issue of what happens if a "material" change occurs before an investor obtains conditional residency, because USCIS says this will lead to a denial or withdrawal of the I-526 application, ultimately resulting in the inability to obtain conditional residency. There needs to be a way to decide early on whether this is considered a "material" change so that investors facing these changes can know whether these changes require (Note: application) starting over. This review process should even provide an opportunity for consultation, where investors (and developers) can seek advice before making changes to avoid what might be deemed a "material" change. For later changes, USCIS should distinguish those where the material change before immigration should be whether the changed plan meets EB-5 needs, rather than whether these changes affect eligibility. At the same time, changes made to previously unqualified plans should not result in the loss of priority dates and child age-outs. Therefore, USCIS should stop denying and withdrawing changed applications and should, in accordance with policies and regulations, confirm the retention of the priority date of the EB-5 application, just like EB-1, EB-2, and EB-3 applications.
Suggestion #10 - Publish regional center statistics - not very practical in operation. More importantly, a regional center is not an NCE and does not control the NCE, so the records of a regional center cannot reflect the quality of the invested enterprise. An NCE might use a regional center specifically set up for that project and might be at a relative disadvantage due to the regional center's statistics. Perhaps more importantly, these statistics will be confusing. A regional center that has gone through USCIS's infamous "no redemption" review clause might have gone through many denied cases, and then immediately followed by the rapid approval of the same batch of clients, which would distort the statistics. Investors can ask about the past records of the regional center or developer to get meaningful answers. The law prevents project issuers from misleading information on the records of such regional centers, and that is enough, especially with the SEC spot-checking some project issuers' promotions. I generally support transparency, but suggestion #10 might do more harm than good.
