We tuned into the United States Citizenship and Immigration Services’ (USCIS) Public Listening Session on the EB-5 Immigrant Investor Program on September 9, 2019, and although there was not much back and forth engagement with Sarah Kendall, Chief of the Immigrant Investor Program Office (IPO), valuable information was shared that sheds light on some unanswered questions on EB-5. Here are five things to know:
Processing Delays for Regional Center Pending I-526s. It appears that the government shutdowns from December 2018 to January 2019 has had lingering effects, as IPO halted adjudications on all regional center I-526 petitions and I-924 applications and focused on adjudicating “direct” I-526 petitions and I-829 petitions, or IPO staff were transferred on “temporary assignment to other [USCIS] priorities.” Additionally, it seems that it has taken so long for IPO to transfer adjudicators back to regional center I-526 petitions because of additional training for I-526 petition adjudicators and economists for “quality assurance”.
I-829 Filings by Derivative Beneficiaries. The new regulations going into effect on November 21, 2019 clarify the filing process for derivatives who are filing a Form I-829 petition separately from the immigrant investor. Kendall that, except in the case of a deceased investor, where the principal petitioner does not include his or her qualifying derivative beneficiaries in the I-829 petition, those beneficiaries seeking removal of conditions cannot use one I-829 petition. Instead, each dependent must file his/her own I-829 petition (with its own $3,750 filing fee).
Clarification on Priority Date Retention. The regulations will also allow certain EB-5 investors with approved I-526 petitions who have not yet obtained conditional lawful permanent resident status with the ability to retain that I-526’s priority date for a subsequently filed I-526 after November 21, 2019, in the event the sponsoring Regional Center was terminated. Kendall made a small comment (later confirmed by the American Immigration Lawyers Association), that the investor may only need to invest $400,000 (if still qualifying for TEA purposes) on top of the existing $500,000 to be eligible under the new rule. Another way priority date retention may be of benefit is for EB-5 investors in delayed projects whose funds remain with the new commercial enterprise.
TEA Determinations. Kendall noted that “there is no change in the timing of the TEA eligibility determination as it relates to the appropriate date to determine whether the investor qualifies for the lower amount,” alluding to the fact that USCIS reviews TEA determinations of the unemployment rate and assess the method or methods by which the state authority obtained the unemployment statistics, as indicated in the EB-5 Policy Manual.
Creation of EB-5 Policy Guidance. IPO appears to have moved on from “stakeholder engagement” towards “listening sessions,” most likely in an attempt to ensure that nobody misspeaks on the phone and creates confusion among EB-5 stakeholders. Kendall notes that the USCIS Policy Manual and forms will be updated based on the new rules. A copy of her remarks can be found here: https://www.uscis.gov/sites/default/files/files/nativedocuments/EB-5_Modernization_Stakeholder_Call.pdf