April 26, 2016

I.A. Donoso & Associates participated in a stakeholder meeting with the USCIS EB-5 Immigrant Investor Program (“IPO”) in Washington, D.C. This stakeholder meeting was an invitation for participants to provide feedback on potential EB-5 regulatory and policy changes. USCIS identified four (4) key topics for discussion:

• Minimum investment amounts;
• The TEA designation process;
• The regional center designation process, including, but not limited to, the exemplar process and the designation of the geographic scope of a regional center; and
• Indirect job creation methodologies.

Several members of USCIS’ core leadership attended the stakeholder meeting, including, IPO Director, Nicolas Colucci, Associate Director of USCIS Field Operations, Daniel Renaud, and IPO Deputy Chief, Julia Harrison.

Minimum Investment Amounts

The Immigration and Nationality Act (INA) expressly establishes the minimum investment amount of US$1 million. However, the US$500,000 minimum investment amount for investment in a Targeted Employment Area is actually established by USCIS Regulations. These Regulations have not changed in over 20 years. Based on the April 2015 letter from Jeh Johnson, Secretary of the Department of Homeland Security, to Senator Leahy and Senator Grassley regarding the EB-5 Program, it is clear that USCIS has been contemplating increasing the US$500,000 minimum investment amount for at least 1 year. In the failed 2015 bill to improve the EB-5 Program, the minimum capital investment amount for Targeted Employment Areas would have increased to US$800,000, with periodic adjustments in subsequent years.

In the EB-5 Stakeholders Call of April 25, 2015, USCIS solicited comments from the public on whether the US$500,000 investment amount should be increased, and how it could be increased. Many stakeholders commented on how they believe the investment amounts should be tied to economic indexes, such as the Consumer Price Index (CPI) or the national inflation rate. Other stakeholders voiced their concerns over raising the minimum investment amount, citing the need to keep the EB-5 program as an attractive option over other countries investment programs. Finally, members of the public expressed their rejection of proposals to impose rules retroactively.

Targeted Employment Areas

USCIS also commented on the potential for Regulations which will revise the rules defining high unemployment areas and rural areas that are eligible for a lower investment threshold, which together are defined as Targeted Employment Areas.

Much like the US$500,000 minimum investment amount, the definition of Targeted Employment Areas was created by USCIS Regulations over 20 years ago and has not changed significantly since that time. At present, USCIS or a State Government of a U.S. State are authorized to issue determinations that a geographic area or political subdivision constitutes a Targeted Employment Area. If a State qualifies an area as a Targeted Employment Area, that determination cannot be challenged by USCIS except for errors in the application of law or fact.

State determinations of Targeted Employment Areas have proven very flexible, and therefore have been highly scrutinized by legislators such as Senators Grassley and Leahy, and Congressmen Issa and Conyers, who believe that States have too much flexibility and will always find a way to qualify an area as a Targeted Employment Area. This position is challenged by many other legislators, such as Senators Schumer and Cornyn.

During the Stakeholders Call of April 25, 2016, USCIS sought comments from the public on whether to change the system for determining Targeted Employment Areas and what kinds of new rules should be proposed.

Stakeholders from the public discussed the role U.S. states currently play in defining Targeted Employment Areas, and considered whether Targeted Employment Areas designation should instead be left to the Department of Homeland Security / USCIS. Many stakeholders stressed the importance of Targeted Employment Area rules changing to create a greater effect for low income areas and for underrepresented economic industries, such as agriculture and infrastructure. A caller from the State of New Mexico stressed the fact that it was difficult for projects in that state to compete with larger, more prominent projects in states such as New York or California.

I-924 and I-526 Processing

Stakeholders also discussed the need for greater clarity and predictability with regards to I-924 and I-526 exemplar filings. Currently, USCIS processing times for I-924 project pre-approvals are over one year, which makes the process impracticable given the fact that a separate I-526 petition filed after the I-924 project pre-approval will take at least an additional year to adjudicate. Stakeholders suggested that USCIS should change their protocols and allow for I-924s to be approved on an expedited basis if a certain percentage of EB-5 project funding is obtained. Finally, given the long waiting times for I-924 project pre-approvals, many stakeholders agreed that it may be more efficient and effective for EB-5 projects to not file an I-924 and simply rely on the actual I-526 filing.

Indirect Job Creation Methodology

USCIS indicated its interest in receiving comments from the public on potential changes to the way in which indirect jobs are counted in the EB-5 Regional Center Program.

By way of background, some legislators have argued that existing indirect job creation methodologies over-state the job creation impact of EB-5 investments in Regional Centers because they count capital raised from domestic banks and the developer’s own equity contribution for estimating job creation. A provision of this type was included in the failed EB-5 Reform Bill S.1501 proposed by Senators Grassley and Leahy in 2015.

The public’s comments essentially confirmed that no changes were desired. One comment stated an old saying in the U.S.: ‘if it ain’t not broke, don’t fix it.’

I-526 Processing Improvements for Investors

Two comments were made to request USCIS to improve I-526 processing for investors.

First, to avoid the age-out of children, USCIS was again requested to hold I-526 cases in abeyance until a visa is available according to the priority date. This practice is standard by USCIS for family based I-130 immigrant visa petitions. Its application to I-526 visa petitions would enable families to remain unified during the EB-5 immigration process, and would greatly reduce the uncertainty faced by Mainland China investors who are the only applicants in the EB-5 Program subject to a visa waiting list.

Second, the USCIS was asked to develop a policy to retain the priority date of the first I-526 visa petition if it becomes necessary to file a second or subsequent I-526 visa petition. This would allow investors to avoid losing their priority date if they refile an I-526 visa petition for any reason, which would also have the benefit of reducing the potential for age-out of children.

Renewal of EB-5 Program in 2016

Nicolas Colucci, Director of the USCIS EB-5 Program Office (IPO), spoke during the conference call regarding the expiration date of the EB-5 Regional Center Program on September 30, 2016. He stated that USCIS believes that Congress will reauthorize the EB-5 Regional Center Program and USCIS is planning on issuing additional policy guidance on its eventual regulatory changes in anticipation of Congress’ reauthorization.

Conclusion

The purpose of the April 25, 2016 Stakeholders Engagement Conference Call was for USCIS to reveal to the public the issues that it is working on, and to obtain information and opinions from the public about those issues. No conclusions were stated by USCIS.

In part, USCIS wishes to put the public on alert that new EB-5 Regulations are eventually going to be prepared. Our recent contacts with legislative offices on Capitol Hill during April 2016 indicate that USCIS expects to disclose new draft Regulations on the EB-5 program, at the earliest, by December 2016. All USCIS Regulations are required to be published as drafts for comments from the public and the EB-5 industry before being adopted by USCIS as final. This means that any proposed new EB-5 Regulations will take approximately 6 months after initial publication as drafts to become effective, which would be approximately in Q2 or Q3 of 2017.

Given that USCIS has not issued significant new EB-5 Regulations in over 20 years, and taking into account the contentiousness of issues such as Targeted Employment Areas, our law firm expects the process for writing new EB-5 Regulations to be lengthy.

We must also note that that this year there will be a national election for the new U.S. President, Congress and Senate in November of 2016 which may have repercussions for the USCIS strategy on EB-5 Regulations.

I.A. Donoso & Associates is uniquely positioned to report on these changes because of our location in Washington, D.C. We will continue to monitor any USCIS regulatory actions that will affect the EB-5 Regional Center Program and Immigrant Investors.

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