Meanwhile, Mexico, Canada, Russia, and Iran moved a few notches up the list in 2022, while Venezuela, South Africa, Great Britain, and Japan moved a few notches down. A possible interpretation of investor is someone still in the investment period, Investment period means the period from I-526 filing through the point of I-829 filing, on the authority of a 2021 blog post by Canadian financial professional Rupy Cheema of EB5 Diligence. The stakes are very high. In theory, IPO exists to process EB-5 forms, just as a hospital exists to heal the sick. Apparently applicable to regional centers with an on-going status as sponsor of investor petitions. USCIS and industry are not sure how to handle the regional center application, amendment, and reporting forms because we lack clarity or agreement on basic questions about regional center identity and responsibilities. Jun 30, 2023, 09:15 AM EDT. Administrative support: Analyze processes to improve productivity and increase quality. 6 Comments. Based on processing trends and factors observable so far, I expect that a significant number of non-Chinese who filed I-526 in 2019-2022 will not have received a visa yet by October 2024 due to slow processing, and thus impacted by country cap removal. And then with the return to regional center I-526 processing since March 2022, we see I-526 activity going back to concentrate on late 2018 priority dates, with a modest uptick in volume, more decisions than RFEs, and denial rates still high. IIUSA Blog BLOG Industry Forum In Focus: Photos Capture Essence of EB-5 Business Development at this Years Event 06.22.23 We are thrilled to see these amazing moments captured at the 13th Annual IIUSA EB-5 Industry Forum, the most . EB 5 News, Latest EB-5 Updates From GreenAccess' Blog We can see what happened when the regional center expiration as of July 2021 left USCIS to focus on the direct EB-5 I-526 inventory. Tsa Weatherl, Division Chief for Form I-829 Division, Discussed I-829 team staffing, workflow, excuses for low completion rates, filing tips, Amanda Atkinson moderating the Q&A session, Questions: 53:44 Carolyn Lee (encouragement to engage, focus specific issues); 58:53 Mona Shah (problems with I-829 extensions, and DOS not recognizing extensions); 1:00:00 Dan Lundy (what is the sustainment period post-RIA and pre-RIA? 33 Comments. Do EB-5 backlogs not exist until they appear at the visa stage/in the visa bulletin? I will update this post if I learn of a chance to respond with questions and concerns. For example comparing 2022 with 2019 visa issuance, China got fewer visas last year through consular processing but five times as many visas through status adjustment. Enter your email address to follow this blog and receive notifications of new posts by email. Adjudications will be based on transparent standards, and will have a predictable timeline. Many jobs were posted as open exclusively to current USCIS employees, and all (except the secretaries) were limited to current or former federal employees, with some flexibility for veterans, military spouses, and Peace Corps. Updates, EB-5 Visa Also, a vast quantity of research will be generated and turned into internal reports and briefings that may eventually translate into improvements. The last round of comments successfully convinced USCIS that its unreasonable to demand that petitioners detail 40 years of employment history (the current proposed version asks for 20 years of employment history). Caught in limbo: Foreign investors, including Indians, sue USCIS - News A quick roundup of significant EB-5 developments since last report rather delayed, while I held out for good news. Recent job postings provide hope that a larger staff and process improvements will eventually result in improved outcomes. I cannot disprove the hypothesis that all of us were sitting there watching pre-recorded video, and typing questions into the void. By David North on March 9, 2022. Important July 2023 Visa Bulletin Dates 4.1. The meeting was 95% technical clarifications on Form I-956K the regional center promoter registration form that functions to feed paper to the black vaults of USCIS, which neither adjudicates the form nor (at least so far) makes it actionable by divulging form compliance or non-compliance to prospective/current investors or regional centers. The bright side is that consular problems affect not only EB-5 but also family-based visa issuance, and EB-5 benefits in 2023 from a share in FB visas that went un-issued in 2022 (as reflected in 2023s unusually high EB visa limit). 10/25 Update: USCIS has now published EB-5 National Stakeholder Engagement Talking Points (PDF, 238.48 KB) and National Engagement EB-5 Stakeholder PowerPoint Presentation (PDF, 315.88 KB). USCIS data reports show the total size of the EB-5 form workload, and the rate at which USCIS is working on it. ], From: U.S. Sustainment Period: Paul Egan, Acting Policy Division Chief, indicated his understanding that the Integrity Act modifies the sustainment requirement for new investors who file I-526 after the Integrity Act. But USCIS still denies I-526 for lack of such documentation. There is obviously no on-going need to certify compliance for activities in which an RC does not engage. Not applicable, since RCs not soliciting investment are not engaged in offers, purchases, or sales of securities, or in providing investment advice the activities subject to securities law compliance. ), The plaintiffs in the Behring litigation are coordinating response to USCIS. This is true because of when visas get allocated. Today marks five months since the EB-5 Reform and Integrity Act (RIA) was enacted on March 15, 2022, and three months since the regional center program gained new authorization. (For example see IIUSAs letter here, the joint industry letter here, and AIIAs letter here.) Of course, the agency may do whatever is reasonably necessary to ensure that the existing regional centers comply with the Integrity Act, but those centers must presently be permitted to operate within the regime created by the Act. Congress did not, after all, pass the EAGLE Act or repeal country caps as part of FY2023 appropriations, which means that (for now) EB-5 visa availability remains constrained/protected by caps that limit any one country to 7% of visas in oversubscribed categories. If youre with an RC that does not plan to raise new capital after RIA, and concerned about protecting past investors, you should also let USCIS hear your voice and reasoning, as soon as possible. Many 2019 decisions in May 2022 were likely on direct petitions that had received RFEs during the shutdown. The necessary recovery is not even close to complete. In 2022, this theory held true for Vietnam but not for India. Oh wait you cant actually apply for a visa now because India EB-5 now shows as backlogged to mid 2018 in todays visa bulletin. In recent statements, webinars, and reports on processing conditions across USCIS, I hear principled commitment to improve more than practical hope for broad-based change any time soon. The future wait times associated with that scary queue depend on (1) how many petitioners/applicants in the queue will ultimately give up/lose eligibility before they can clam a visa (likely a large number given the untenable wait times looming for Chinese and Indians near the end of the queue), and (2) how many EB-5 visas will be issued per year from now on, with the base case being 9,940 EB-5 visas * 68% unreserved * 7% country cap = up to 473 to applicants of each country. 2022 was naturally confusing for the Visa Office, which had to deal with a mid-year law change and leadership change. Questions for consideration:If you would like to submit a question in advance on one of the three topics we will be covering during this engagement (direct and third party promoters, sustainment, or regional center operations), please send your question to the Public Engagement mailbox at public.engagement@uscis.dhs.gov with the subject line Question: EB-5 Engagement March 20, 2023 by 4 p.m. Friday, Feb. 10. Before launching into details, a reminder that industry associations like IIUSA (for regional centers) and AIIA (for investors) are working on these issues, and you can join an association to help magnify your voice and interests in these volatile times. UPDATE: The IIUSA blog has published my detailed analysis of the formula and inputs behind the fee rule, with thoughts on how to respond. With your background and status, you should be capable and informed about the EB-5 process. The Form I-956 content is focused on compliance for capital raising activities, and as such not technically relevant for previously-approved regional centers that do not plan to raise new EB-5 capital going forward. Or did many Indians get lucky just because they happened to be in the US, unlike most Chinese and Vietnamese EB-5 applicants with earlier priority dates? As things stand, the United States has raised and benefited from about 15 billion dollars in EB-5 investment over and above what it can justify based on current EB-5 visa number limits. On any given day, the handful of EB-5 actions completed can include I-526 with priority dates anywhere from 2013 to 2022. This approach offered some protection for incoming investors (who would benefit from advance compliance review by USCIS), confusion and alarm for past investors (who found their previous RC sponsor status and compliance responsibilities cancelled), and pain for regional centers authorized under the old law (who wanted to resume business, not be held back by lengthy USCIS processing times for compliance review under the new law). Youre welcome. With 2020's close, GreenAccess shares these important project milestones. Ive carefully assembled below a table highlighting data to help ground thinking about these factors. In keeping with its recent trend of slower processing for EB-5 petitions, United States Citizenship and Immigration Services (USCIS) has moved back the cut off date for Indian investors by 17 months in the March 2023 Visa Bulletin. 1. After examining the picture, you may want to consult this presentation and my data summary for most recent available estimates of the number of applicants hidden in the EB-5 process clouds (not yet on the Visa Control radar, but important for us because determinative for future visa bulletins). Announcement on Resumption of Processing of EB-5 Visas - Travel 19 May 2023. It also strengthens our communities across the country by encouraging foreign direct investment and creating jobs. She also stated that I firmly believe that every applicant who seeks a benefit from USCIS is entitled to a timely decision be it a yes or no. 2. IPO is still on track to deliver over-six-year processing times for I-526 and I-829, still chaotic in the date range of petitions being processed, and still denying a large percentage of I-526. This group will help USCIS understand if the information provided on the Check Case Processing Times webpage is useful. Consider applying to participate! Ive written about country cap bills several times over the years and they never passed, but the current version (the EAGLE Act H.R.3648/S.4567) is reportedly actively in play, with a chance to get attached to FY2023 appropriations. This webinar is not for press purposes. Investors originally sponsored by bad actor regional centers may be thankful for a prospect however slim to change sponsors upon USCIS termination. August 15, 2022 (And the new law sadly increases the stakes and risks of ambiguity, because RIA removed the possibility of judicial review for unreasonable USCIS interpretations.). Unlike H1B visa, EB-5 gives wide flexibility including a green card In August, after Trump made the . In the first 8 months of FY2022, IPO has only approved 223 I-526. EB-5 stakeholders should note the insightful analysis of resource constraints (not EB-5-specific, but applicable), and the detailed discussion of the EAD and Advance Parole processes and the expedite process. There are questions about the status of previously-approved regional centers and their investors, ongoing processing issues, and the prospect of new legislation to change everyones visa wait times. Reasonable exit strategies will be expected and possible. Their feedback will naturally reflect their interests and perspective as regional centers who do choose to file I-956 to raise new capital going forward. As in 2019, the top users in 2022 were (in descending order): China, India, Vietnam, South Korea, Brazil, and Taiwan. Among those motivated to care about immigration outcomes, how many will slog through articles like this instead of clinging to hopeful guesses? No wonder weve ended up in such a mess of frustration, hostility, and litigation. By pulling the legal justification out from under USCISs website announcements, the injunctionpotentially opens a window for formerly-designated regional centers to raise new capital during the transition period while USCIS implements and assesses compliance under the new law. For this post, Ill comment on a few questions that can be addressed with reference to recent job postings. As of today, the best I-526 data we have is mostly thanks to IIUSA communicating with the now-retired Charles Oppenheim at Department of State, and goes through 2021. Who is willing to take the first step toward affecting change identifying and discussing EB-5 processing problems when the problems look discouraging? We will have policy for regional center compliance. Today marks the end of Fiscal Year 2022, and the first September since 2015 that I havent spent reporting on Congressional news and the appropriations process, waiting with bated breath for updates about regional center program authorization. Bad actors will not flourish in impunity underwritten by long processing queue times, policy uncertainty, misdirected adjudication, and lack of communication from USCIS. The Visa Bulletin only monitors and controls the later visa stage, not the queue on its way to the visa stage. IIUSA Blog - Invest In the USA Meanwhile Indians, many adjusting status in the U.S., managed to get a record 1,381 visas in 2022 even more than technically available to them under the years unreserved visa limit. When pressed about this during the Q&A, Mr. Egan had already left the call and none of the other USCIS reps wanted to confirm or clarify his statement. Over the last five years, there have very few EB-5 updates from USCIS, and only three events that could be considered engagements in the sense of involving any dialogue between USCIS and EB-5 stakeholders. The most recent docket item filed August 12 by DHS discloses that the parties are substantially engaged in settlement discussions, and an administrative resolution that may render further litigation of this case unnecessary.. USCIS has published six new forms that will need to be revised eventually in response to litigation and to correct errors and omissions: Form I-956 Application for Regional Center Designation, Form I-956H Bona Fides of Persons Involved with Regional Center Program, Form I-956F Application for Approval of an Investment in a New Commercial Enterprise, Form I-956G Regional Center Annual Statement, Form I-526, Immigrant Petition by Standalone Investor, and Form I-526E Immigrant Petition by Regional Center Investor. Over the past year, I-829 processing has generally clustered around petitions filed in 2019, but also included many I-829 filed in 2017 and 2018, and a few filed as early as 2015 and as late as 2021. For better or worse, RIA is the law. A closer look at the data reveals other details of interest. Immigrant visas are authorized under the Regional Center Program through Sept. 30, 2027. 5 Comments. The law and conditions that determine the EB-5 visa allocated are those that pertain at the time the visa is allocated a time years after investment under current processing conditions. Editorialized about policy change implications of the Integrity Act (including change to the sustainment period requirement) and gave a target to finalize new EB-5 regulations at the end of CY2023. However, the words efficiency and productivity also appear several times, and four positions even include customer service among the required competencies. F. RETROGRESSION IN THE EMPLOYMENT-BASED FIFTH PREFERENCE (EB-5) FOR INDIA. Q3 saw over a thousand I-485 receipts at California Service Center, but only a few dozen I-526 receipts. They will accept our written position paper on these issues in accordance with existing channels of communication and in compliance with Section 107 of the RIA. February 10, 2023 (I think this interpretation can and ought to be challenged, at at least one lawsuit by DRVC is challenging it, but its the fact for now.). If the entire system cannot be improved with sufficient resources to provide reasonable processing for everyone, then pressure will build to improve processing times inequitably for at least a few constituents. I-526 routinely get denied for not providing such evidence, because RFEs and decisions can point to justification in the law although USCIS doesnt publicly request the evidence in their forms, instructions, filing tips, or policy manual. Annual Report: Although the USCIS website I-956G instructions say that regional centers approved after May 14, 2022 may file the I-956G annual report, the Investor Program Office gave different instructions in the call. If anyone would like to leak reasons to me, please reach out on email, phone, or Telegram. Regional centers wishing to retain designation for the sake of shepherding pre-RIA investment and projects, not for the purpose of soliciting new investment, could reasonably be held to RIA requirements that apply to shepherding investment, and not held to RIA requirements specific to soliciting investment. Meanwhile, new investors in reserved categories have to sweat over limited availability (with just 20%, 10% or 2% of visas available in each new lane, further restricted under the 7% country cap) and guessing the time for I-526 filings to invisibly build and max out that limited availability. The CR is expected to be signed by the President . See my Processing Data page with updated charts and detail for I-526, I-829, and I-485 processing through the end of the year. . We will not address case-specific questions, questions outside the scope of the engagement, or issues under active litigation or likely to be litigated. I will shortly publish a separate post and new pages with the updates Ive been collecting on I-526 and I-829 processing, adjustment of status, consular processing, the backlog and visa availability, and processing conditions generally. Evidence to establish regional center geography; Whether regional center policies and procedures need to be provided or only described; What circumstances require an I-956F amendment; Whether stand-alone investors need to use fund administration; The definition of an infrastructure project; Whether regional center annual reports need to cover funds raised prior to RIA. Perhaps the agency could conclude that the centers must reapply but can operate consistent with the requirements of the Integrity Act pending their new applications. USCIS Announces New EB-5 Regional Center Program On March 15, President Biden signed a law that includes authority for an EB-5 Immigrant Investor Regional Center Program and various implementation effective dates for the program. The I-956K instructions warn that if USCIS finds problems with I-956K, penalties can include criminal prosecution for the aspiring promoter plus denial of applications and petitions associated with the regional center, NCE, or JCE associated with that promoter. What are the Latest Changes to the EB-5 Program? In practice, IPO processing output has been very low for an office with 200+ employees mostly earning $100,000+ per year each. While everyone buzzes about when I-526E can be filed with USCIS (a key point in the proposed Settlement Agreement for the Behring litigation), I consider another critical issue: when I-526/I-526E can be reviewed and approved by USCIS. For example, South Koreans got 695 EB-5 visas in 2019 (the most recent normal year) but only 396 visas in 2022 (86% by consular processing), despite the fact that 909 South Korean EB-5 applicants were ready and registered at the National Visa Center at the start of 2022. Witness how conditions have deteriorated since 2018, back when we thought two-year I-526 processing times were long. You introduced yourself in the October 2022 EB-5 stakeholder meeting as I-526 Division Chief at IPO, with ten years of experience as an IPO economist preceded by eight years of service at the Bureau of Economic Analysis. IPO is not quite the hospital with 300 busy administrative staff and no doctors or medical service as described in Yes Minister, but its on the spectrum. Those visa bulletin dates appear out of nowhere! Good actors will be empowered to plan well based on good information about the immigration process and success factors. Apparently applicable to all designated RCs, with no reference to whether it was designated under subparagraph (E) or Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993. Kevin Murk, Division Chief for Form I-526 Division. Read More. Investors Overcome New Challenges In U.S. EB-5 Program - Forbes I wont publish a recording. USCIS Website Updated Regarding EB-5 Regional Center Program It appears that the conflict has not been resolved in EB-5s favor. See minutes 7, 32, and 1:17:00 of my recording. Big tech companies reliant on EB-2 and EB-3 dont like country caps, which is why legislation to eliminate country caps has been proposed in Congress continuously since at least 2011. The following table considers which requirements created by RIA are specific to raising and deploying EB-5 investment, and thus naturally not applicable to RCs/NCEs that raised and deployed EB-5 funds prior to RIA and will not continue such activity after RIA. The report mentions no carryover of the 6,396 reserve EB-5 visas that went unused in FY2022. From 2010 to 2017, USCIS used to hold quarterly EB-5 engagements with updates and live Q&A. 11 Comments. EB-5 Reform and Integrity Act implementation does not dominate recent IPO job postings. And stakeholders now have more time to provide input. None of the advertised positions asked for any educational qualifications in immigration law, securities law, business, or finance. Participation in this engagement will be virtual. To the extent that words can help, I hope and plan to bring out articles on FY2023 visa availability and reserved visas implementation, the scope of exemplar approval, denial factors and issues for attention in IPO adjudications, questions about regional center and investor status after December 29, China timing factors, India timing factors, market size potential and constraints, issues and questions in new forms, and changing project success factors in the wake of the new law. If you think that, try to look in the face of an Indian who filed I-526 in December 2020, and say You didnt need to know about the 2,300+ other Indian I-526 we already had on file at USCIS in December 2020, but didnt disclose except through FOIA years later. Try to tell him: The December 2020 visa bulletin when you filed I-526 said that India EB-5 was current so obviously you were good to go no backlog for you to worry about when you invested! March 15, 2023 No one thinks that eight years is an acceptable processing target. The experience of existing investors will influence a regional centers ability to attract new investment. (Personally I would not file I-526 relying on an I-924 exemplar approval without I-956F, since I-924 had half the content required for an exemplar under the new law plus different approval standards, and any material change cancels exemplar deference according to the new law.) Both of these issues are hugely consequential. None asked for experience with business or investment. USCIS has not yet decided whether it will take the position that RIA requirements, such as fund administrators and audits, apply to pre-RIA projects. July 12, 2022 Are thousands of good faith investors about to start seeing their I-526 and I-829 denied and their residence status revoked through no fault of their own, and for no fault in the investment or job creation, but simply because their good faith regional center sponsor decided to go passive (instead of choosing to solicit new investment under the Integrity Act, with compliance steps specifically relevant to soliciting new investment)? (One significant variable is attrition from denials/withdrawals/age-outs, which could reasonably turn out much higher than the value entered in my model.) EB-5 Visa Latest News & Insights by Carolyn Lee PLLC By three business days before the deadline, everyone had already had to make their guesses and gambles and done what they were going to do with I-956 and I-956G (if they even realized that a December 29 deadline existed, since USCIS did not offer I-956 guidance to the general public, but only in litigation settlement and a private meeting with a few litigation plaintiffs). 4 Comments. In the meantime, Ill suggest a reading list of articles from other sources, followed by a comment on the October 2022 visa bulletin. Or consider the issue of source of funds for enterprise owners not seeking immigration benefits. Escrow protection will be possible. Youre welcome to download and play with this and apply your own assumptions. USCIS also made changes to Volume 7 to add concurrent filing for EB-5 (now allowed since RIA) and to delete priority date protection for EB-5 (now not available since the EB-5 Modernization Regulation was rescinded). An unknown number of previously-approved regional centers have filed I-956 and chosen to solicit investors under RIA. I do not know the reasons for departing from FIFO discipline in I-829 adjudications. The parties are still discussing how DHS should handle pre-existing regional centers and their existing and new investors under the new rules. Of the many battles to fight in EB-5, a critical one remains the situation at the Investor Program Office. These positions might be needless if only IPO had halfway decent IT and database systems, but expensive humans are better than nothing.
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