August 29, 2016

On August 29, 2016, the Investor Program Office of U.S. Citizenship & Immigration Services (“USCIS”) held national a conference call for the EB-5 immigrant investor visa program.  This conference call was a follow-up to the July 28, 2016, stakeholder conference call during which technical difficulties made telephonic participation impossible. Leading the Investor Program Office were Nicholas Colucci, Chief of the EB-5 Program, and Laurie McKenzie, Division Chief of Policy.

Regulations

USCIS notified that it is working on new EB-5 Regulations but did not provide a date for the release of the new draft regulations for public comment.

EB-5 Policy Manual

USCIS confirmed that it is working on releasing a draft EB-5 Policy Manual by December 31, 2016.  The EB-5 Policy Manual seeks to summarize all USCIS policies in relation to the EB-5 program in one document.  The EB-5 Policy Manual is intended to include the final version of the draft August 10, 2015 EB-5 Policy Memorandum on redeployment.  Topics likely to be addressed in this Policy Memorandum include:

• Job requirements and sustaining investment, throughout the I-829 stage,
• Job creation documentation guidelines for direct-EB5 investments,
• Acceptable avenues of “seeking to acquire” an immigrant visa, for purposes of avoiding “age-out” issues for dependents nearing 21 years.

Minor Investors

USCIS stated that EB-5 regulations do not specifically prevent Investors younger than age 14 from investing in the EB-5 program. However, the petition must overcome the presumption of voidability to demonstrate that the Investor will be bound by contracts they (or their parents or guardians) sign on their behalf.  USCIS also stated that if the minor investor is unable to open their own bank account, and a parent or guardian transfers the minor’s funds directly to the Escrow Bank from the parent or guardian’s account, the petition must show that the transferred funds belong to the minor investor.

Age-Out Cases

USCIS stated that it expects to address in the EB-5 Policy Manual the question of whether an I-485 filed under the Dates for Filing in the DOS Visa Bulletin qualifies as seeking to acquire under the Child Status Protection Act question   In relation to holding I-526 petitions in abeyance to give a longer USCIS processing for purposes of the CSPA, USCIS indicated that it did not intend to implement such a policy at the present time.

Conclusion

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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